TaxTMI 
TaxTMI 
TaxTMI 
2003 (11) TMI 615
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.... Nos. 1 to 6 and the fall out thereof unfolding against currents and cross currents of political vicissitudes. Facts leading to these appeals are as under: 2. The Government of Tamil Nadu formed a Tamil Nadu Small Industries Corporation Limited (for short 'TANSI'). It was registered under the Companies Act, 1956 as a Government Company. The entire shares, namely, 100% of the shares of the said Corporation, were held by the government. In the Memorandum of Association it is stated that the said company is formed 'to take over from the Government of Tamil Nadu any of their production and/or servicing units with the rights and liabilities of the Government of Tamil Nadu so far as they relate to such units'. Article 72 of Articles of Association empowers the Government to appoint all the Directors with the power to remove any Director from time to time. Article 79 empowers the Government to appoint and remove the Managing Director. Similarly Government can also appoint a Chairman and Vice-Chairman of the Board. The Chairman can reserve for the approval of the Government any proposals or decisions of the Board in respect of any of the matters regarding (a) increase or r....
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....es mentioned in the said G.O. Therefore, the Government decided that TANSI should close down the 8 units and explore the possibility of disposing the properties by inviting offers through advertisements in newspapers. 4. In pursuance of the G.O., Ex.P-21, TANSI Foundry unit was officially close as per Ex.P.-33. Out of the total extent of 5.535 acres of land and 3267 sq.mts. of buildings in TANSI Foundry, an extent of 0.545 acres of land and 569 sq.mts. of building were transferred to Tamil Nadu Corporation for Development of Women on 15.5.1987 by TANSI after collecting Rs. 12.21 lakhs. Advertisements were issued on 31.8.1988 for disposal of the remaining extent of land and building and four offers were received. The offers of Ashwini Plastic and ENCOFED were recommended to the Government after the approval of the Board, but the Government did not give approval on the ground that it will be more advantageous to TANSI to call for fresh tenders after parcelling out the land into industrial plots in accordance with the Madras Metropolitan Development Authority rules and regulations. On 30.4.1990 Jaya Publications, an unregistered partnership firm in which J. Jayalalitha, Accused No. 1....
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....ontract exceeds Rs. 1 crore. It also directed that the proposals should be sent with the recommendation of the Board to the Administrative Department concerned and that Administrative Department may follow circuit procedures to circulate the file to concerned Minister, Minister for Finance and Chief Minister. 6. The Board of Directors of TANSI resolved to constitute a Sub-Committee consisting of the Directors for evaluating the offers received in respect of TANSI Enamelled Wires pursuant to the advertisement issued on 10.10.1991 and to make recommendations for the disposal of the assets of the closed units of TANSI. The members of the Sub-Committee appointed by the Board were Chairman-cum-Managing Director of TANSI, who is also the Director of TANSI, Abdul Hasan, the Director of TANSI and Joint Secretary, Industries Department, and C. Madakkannu, Chief Engineer (Buildings),PWD, who is also the Director of TANSI. Advertisements were caused to be published in leading newspapers on 21.11.1991 calling for offers through tenders for the purchase of the property of TANSI Foundry. A letter was addressed by the Managing Director (A-3) to the Sub-Registrar, Adayar (P.W. 1) intimating that ....
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....ce the offer of Jaya Publications was Rs. 1,82,13,150/- which is the highest of all the four bids and they should take up the matter with the Board by a note in circulation for a decision regarding the disposal of the property. Ex. P-30 are the Minutes of the meeting of the Sub- Committee and the same were initiated by P.W. 8 and A-3. The Board considered the matter and it was noticed that the value offered for the land by the highest bidder was Rs. 1,62,93,150 which worked out to Rs. 3.01 lakhs and that though it was much lower than Rs. 7.30 lakhs which was the guideline value for Block No. 6 of Thiru. vi. Ka. Industrial Estate, it was marginally higher than the value fixed by the Collector under Ex.D-20 as the Collector had fixed the price per ground for the property at Rs. 3 lakhs. The note further indicated that TANSI had already decided to sell 2.52 acres of land of the same unit to Tamil Nadu Sugar Federation at Rs. 3 lakhs per ground and, therefore, the price of Rs. 3.01 lakhs offered by Jaya Publications could be considered reasonable. It was also taken into consideration that Rs. 19.20 lakhs was offered by the highest bidder for the building and that heavy structures avail....
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....e High Court of Madras relief is sought for setting aside the sale deeds executed in favour of Jaya Publications and Sasi Enterprises on the ground that the sale deeds are invalid documents and for resumption of land by the Government. We are not concerned with this writ petition in these proceedings. 9. A private complaint was lodged before the IX Metropolitan Magistrate Court, Saidapet, seeking to punish J. Jayalalitha, respondent No. 1 herein, for offence under Section 169 IPC for having purchased Government land in violation of Code of Conduct for Ministers. In view of several complaints and on the basis of media reports, the Government referred the matter to C.B.C.I.D. on which a crime came to be registered in crime No. 17 of 1996 Ex. P-75 is the First Information Report in the said crime. Investigation was taken up by P.W.27 and two cases were registered as Special C.C. No. 4 of 1997 and Special C.C. No. 13 of 1997 against the respondents. 10. A-1 was charged under Section 120-B IPC, Section 13(2) read with Section 13(1)(c) & 13(1)(d) of the Prevention of Corruption Act, and Sections 409, 169 and 420 read with Section 34 IPC. A-2 was charged under Section 120-B IPC, Section....
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....ct and he was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 10,000/- with a default sentence of simple imprisonment for three months. The learned trial Judge further directed that the sentences imposed upon the accused will run concurrently. A-1 was acquitted of the charge framed under Section 420 IPC and also the charge under Section 169 IPC. A-2 was acquitted of the charges framed under Section 169 read with 109 IPC and 420 read with 34 IPC. A-3 was acquitted under Sections 119 IPC read with 13(2) read with 13(1)(d) of the Prevention of Corruption Act and under Sections 169 read with 109 IPC, 420 IPC and 409 IPC. A-4 and A-5 were acquitted of the charges framed under Sections 119 IPC read with 13(2) read with 13(1)(d) of the Prevention of Corruption Act and Sections 169 read with 109 IPC. A-4 is stated to have died subsequent to the disposal of the appeal in the High Court and before these proceedings were filed in this Court. A-6 was acquitted of the charges under Sections 119 IPC read with 13(2) read with 13(1)(d) of the Prevention of Corruption Act and under Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act and 109 IPC. ....
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....M/s Sasi Enterprises is not vitiated. The Sub-Committee rejected the offer of M/s R.R.Industries of Rs. 4.12 lakhs on the basis of guideline value. It is only much later the Sub- Committee realised from Ex.D-39, letter of the Sub-Registrar, that the subject matter of sale therein is only of an extent of 240 sq. feet and is in respect of a small shed. There are other reasons also to reject the offer of R.R. Industries. 8. The charge of conspiracy could not be established as the properties in question were not purchased at a price lower than the Guideline or market value nor is there any independent material to conclude that there is any conspiracy to commit offences charged herein. 9. There is no link established to show that there is a conspiracy to sell the properties at a lesser price so as to cause wrongful loss and wrongful gain to enable A-1 and A-2 to obtain the same. 10. In view of the finding recorded that there was no Guideline Value and by reason of the properties sold at Rs. 3 lakhs per ground there was no pecuniary advantage to M/s Jaya Publications, the charges under Section 13(2) read with Sections 13(1)(c) and 13(1)(d) of the PA Act were not established. 11. ....
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....erved by the High Court, the property was sold by tender process and the bidders quoted their offers and the highest offer was that of firms of respondents Nos. 1 and 2 and under the circumstances, unless the tender process was shown to be vitiated, the price quoted by the highest bidder had to be normally taken as the market value. Market value being a variable factor and if a price was quoted and if it was not shown that the tender was vitiated, then the price quoted by the highest bidder had to be taken as the market value. It is the admitted case of the prosecution that Jaya Publications offered Rs. 3.01 lakhs per ground for the entire land and it offered to purchase the superstructure and machinery at Rs. 19.20 lakhs and other bidders quoted less. On an earlier occasion when TANSI Foundry unit wanted to sell 3.26 acres of land to Tamil Nadu Co-operative Sugar Federation, the value of a ground was fixed at Rs. 3 lakhs by the Collector, Madras. It could be seen from Ex.D-20 which is a letter written by the Collector to the Commissioner of Land Administration to the effect that the maximum sale value in the village in Block No.5 of Thiru. Vi. Ka. Industrial Estate was Rs. 3,12,61....
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....t then adverted to the argument of the learned Public Prosecutor that Ex.P.60 should be eschewed from consideration on the ground that it lies within the jurisdiction of a different revenue district and observed that if Ex.P.60 is to be ignored, the market value of the disputed property would only be Rs. 1,68,649 and not even Rs. 3,00,000. 18. In view of the failure of the prosecution to show that the guideline value is Rs. 7.32 lakhs per ground and in view of the positive evidence as brought out through Ex. D-20 and P-61 that the value of the land of TANSI Foundry unit could be about Rs. 3 lakhs per ground particularly when the sale was by way of open tender, it cannot be said beyond reasonable doubt that the property in question had been under-sold and thus there was loss to TANSI. The view taken by the High Court appears to us to be a reasonably possible view. 19. Now we shall examine whether Ex. P-8, P-57, P-70 and P-71could be considered to assess the market value of the disputed property as Rs. 7.32 lakhs per ground. Each of these documents was accompanied by Form 1-A wherein the parties acquiesced in the claim for payment of excess stamp duty. The land comprised in Exs. P-....
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....ice ranged between Rs. 76,344 to Rs. 4,78,484/- per ground. Indeed, Exs.P-70 and P-71 indicated that Rs. 8 lakhs per ground would be the value but those documents involve transfer of a running business. The High Court also gave importance to the history of the efforts on the part of TANSI to bring the properties to sale and its failure to obtain the reasonable price at the earlier floated tenders. The properties, therefore, became a dead investment and interest was being paid by TANSI on loans borrowed from the banks. At the time of the present transaction, the borrowings extended to Rs. 1.87 crores and had to pay Rs. 18 lakhs of interest per annum and, therefore, it was not possible to contend that bringing the properties in question for sale was imprudent nor it could be demonstrated that the advertisement did not give sufficient particulars or that the tender forms were not made freely available or that anyone of the bidders was pressurized into not bidding or bidding for a lower amount or that a cartel had been formed or that the bidding in open tender was vitiated in any manner whatsoever. In such cases the courts have always held that the best price obtained through open tend....
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....ider the valuation of superstructure. Exhibit P-5 showed that the building was worth Rs. 18,22,654/- which is less than the value offered by M/s Jaya Publications. This amount of Rs. 18,22,654/- was assessed by one Sivaraman at the instance of PW-1 after the sale was effected. The assessment of Sivaraman under Exhibit P-5 was not impeached. On the contrary, the prosecution placed reliance upon the same and adverting to the evidence of PW-19, the Design Engineer, and Ex.P-59 approved by the Chief Engineer wanted to contend that the value of the building is Rs. 53,12,354/-. PW-19, the Design Engineer, assessed it at Rs. 4,64,75,036/- as could be seen from Ex.P-58. Subsequently, the same was modified by the Chief Engineer by bringing it down to Rs. 53,12,354/-. There is a big difference of amount of more than 4 crores between the value assessed by the PW-19, the Design Engineer and the value fixed by the Chief Engineer. They did not contain any details as to how the value had been finally arrived at Rs. 53,12,354/- of the building. In Ex.P- 58, the value of the structural columns were shown at Rs. 54,32,130/- but in Ex. P-59, it was shown as 39 lakhs, and no evidence was adduced befor....
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.... have fetched or would fetch, if sold in the open market on the date of execution of the instrument of conveyance, exchange gift, release of benami right or settlement." 25. This scheme of the enactment and Rules contemplate that guideline value will only afford a prima facie basis to ascertain the true or correct market value undue emphasis on the guideline value without reference to the setting in which it is to be viewed will obscure the issue for consideration. It is clear, therefore, that guideline value is not sacrosanct as urged on behalf of the appellants, but only a factor to be taken note of if at all available in respect of an area in which the property transferred lies. In any event, therefore, if for the purpose of Stamp Act guideline value alone is not a factor to determine the value of property, its worth will not be any higher in the context of assessing the true market value of properties in question to ascertain whether the transaction has resulted in any offence so as to give a pecuniary advantage to one party or the other. 26. In ascertaining the true value, the High Court has taken note of several features. Firstly, the price has been offered by the firm of ....
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....ming evidence on record to indicate that accused No. 1 has signed the documents in question, but the denial of respondent No. 1 appears to be too naove to be accepted in a court of law. May be respondent No. 1 might have tried to be unduly cautious without fully understanding the implications in law. Fact remains that properties in question have been sold to firms of which respondents Nos. 1 and 2 are partners. That fact in the case not being in dispute, it is unnecessary to dilate on this aspect any more. 29. Insofar as the offence under Section 120B is concerned, it is not clear from the arguments made by the learned counsel on behalf of the appellants in what manner the conspiracy is sought to be established. How there have been meeting of the minds of different accused at different stages and what the common design has been, is not clear. Even if we assume for the purpose of argument that some of the officers of the Government were circumspect in their attitude having come to the conclusion that A-1 was interested in purchase of the properties and have put their seal to such act either tacitly or over zealously by being too expressive of the same, we cannot hold that there was....
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....enders for works, equipments, etc. if it is for purchase and not for sale of property. Inasmuch as in the markings in the note file there was reference to 'Minister (Rural Industries)', 'Minister (Finance)' and 'Chief Minister' and according to the prosecution, it was scored off by PW-14 at the instance of A-4, the prosecution wanted to draw support from this fact. In fact, PW-14 admitted that when she put up her note, she only stated that it had to be circulated to A-4 and PW 11 wanted the file to be circulated to Minister (Rural Industries), Minister (Finance) and Chief Minister and PW 14 did not make such a note and, therefore, by merely finding the letters "M(RI)", "M(F)" and "CM" and their scoring off, we cannot come to the conclusion that they were first entered and later scored off at the instance of A-4. It was, therefore, not possible to hold that there was conspiracy among the accused on that account. 31. An argument was put forth that A-5 did not follow the procedure contemplated under the Tamil Nadu Stamp (Prevention of Under-valuation of Instruments) Rules, 1968 since he did not wait for 21 days for the parties to submit their representations b....
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....stances under which the properties were purchased by M/s Jaya Publications and M/s Sasi Enterprises cannot be treated as one obtained in the circumstances arising in Section 13(1)(d). The facts established in the case point out that the properties are not purchased by corrupt or illegal means or by abusing the official position as public servant to obtain pecuniary advantage discarding public interest. The purchase was effected through open sales held by TANSI. The right to sell the properties in question was available with the Corporation which chose to do so in favour of M/s Jaya Publications and M/s Sasi Enterprises. It is not established that A-1 or any other person obtained for herself any valuable thing or pecuniary advantage by abusing her position as public servant. On the other hand, as stated earlier, the properties in question were sought to be sold from time to time and pursuant to such steps taken the properties had been sold to two firms in question. The sale has been held pursuant to various resolutions of the Government since 1985 and that the putting up of the properties in question for sale itself was not against any public interest. When the two firms of which A-....
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....in mind certain facts. The decision to accept the offer of Jaya Publications was that of the Board and not of A-3 alone. PW 8 the General Manager and Company Secretary of TANSI admitted that all the decisions were taken by the Sub-Committee and no decision was taken independently by any individual and A-3 followed the decision of the Sub-Committee, which was approved by the Board. Therefore, there was no evidence to show that A-3 acted against the decision to favour Jaya Publications. The sale of land to Jaya Publications is a collective decision of the Board and not of any individual, the price on which the land was to be sold and the price on which the buildings were to be sold were decided by the Board of Directors to which the Government gave approval and thus there was no independent assignment to A-3 in deciding the matter nor did he suppress any document by not placing them before the Board of Directors. 39. A-5, Special Deputy Collector (Stamps), only performed statutory duty in fixing the value of the property in question at Rs. 3 lakhs per ground after notice to the concerned parties. The matter was statutorily referred to A-5 for fixing the market value of the property ....
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...., he held that the value fixed by A-5 at Rs. 3 lakhs per ground for the property in dispute could not be stated to be an under valuation. 40. In answer to the contention that Exs. P-8, P-57, P-70 and P-71 were not taken into consideration by A-5 when he fixed the value for disputed property at Rs. 3 lakhs per ground, it could be seen that the lands comprised in these documents were not comparable and did not reflect the true value of the property in dispute. By letter - Ex. D-20, the Collector had fixed the value of the property, Ex. P-61 - the Commissioner of Land Administration fixed the value of the disputed land at Rs. 3 lakhs per ground. In Ex. D-21, PW 1 himself admitted that Exs. P-70, 71 and 8 were not the comparable sales and further it was seen from the evidence that the land conveyed under Ex. P-8 was close to 100 feet road and the extent was also smaller as is in the case of Ex. P-57. Ex. P-4 is a letter addressed by way of answer to his subordinate setting out the guidelines. A-5 fixed the market value of the property covered under Ex. P-68 at Rs. 2,78,184/- per ground and not at Rs. 6 lakhs though the property was situate within Block No. 6 of Adayar village. Ex. P-6....
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....in relation to that property and his private interest in purchasing that property and the general law in this regard being that persons in fiduciary position are not to derive advantage from their position and they should not place themselves in a position where there would be a conflict of interest in duty, whether such transaction would result in a loss to public or not. In this context, the provisions of Section 52 of the Indian Trust Act, 1882, Section 136 of the Transfer of Property Act, 1882 and Order XXI, Rule 73 CPC are brought to our notice and reliance was also placed on the decision of the Privy Council in (Seth) Kanhaya Lal, since deceased (Now represented by Seth Hanuman Prasad & Ors.) Vs. National Bank of India Ltd. New Delhi, AIR 1923 PC 114, wherein it was observed that there should not be merging of two positions, namely, that the interest of the seller to get the highest price and the buyer to get the lowest price in the same person. In such an event, there will definitely be a conflict. Applying the same principles, even in relation to the position of Ministers, Ministers ought not to enter into any transaction whereby their private pecuniary interest might even ....
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.... under Article 73 of the Constitution have for their operation an equal efficacy as an Act of Parliament or the rules made by the President under Article 309 of the Constitution. The order of the Governor bound A-1 not to purchase property from the Government. The contention is that Rule 2(b) of the GO is not a rule of moral instruction or guidance to be observed or not observed as the Minister deems fit or not and it was meant to be a binding rule of action and in this context, reference was made to the decision in Vidadala Harinadhababu & etc. Vs. N.T. Ramarao, Chief Minister, State of Andhra Pradesh, Hyderabad & Ors. AIR 1990 AP 20, the Full Bench of the Andhra Pradesh High Court observed that no minister would claim or would have the temerity to claim that he is not bound by restrictions contained in the Code of Conduct and the mere fact that the Government order is not statutory is irrelevant and even executive orders have a binding force in law and it could not be spelt out that sanction is not logically essential for a law and, therefore, the Chief Minister was also bound and was within the scope of the order. For this purpose, it was also submitted that the question is not ....
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.... contravention arising out of a plethora of administrative instructions. Article 162 of the Constitution cannot elevate the Code of Conduct to the status of statute or statutory rules, even assuming that the State can legislate on the topic. In any case, it is contended, Code of Conduct contains no prohibition against the purchase of the property in question which is owned by the Government Corporation, namely, Tamil Nadu Small Scale Industries Corporation. A distinction is maintained in the Code itself between the property of the Government and the property of the Government undertakings. The property of a Government Company, which has a distinct legal identity, cannot be equated to the property of the Government though the Government may have control over the Corporation. The prohibition must be clear and unambiguous to give rise to the offence. The theory of lifting the veil of the Company cannot be invoked while dealing with the criminal offences alleged to have been committed by a third party. While elaborating the point that the definition of "legally bound to do" cannot be imported, attention is drawn to Sections 175, 176, 177, 179, 181, 191, 202, 221, 222, 223 and 225 A IPC....
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....Judge, legal practitioner, or officer connected with any Court of Justice shall buy or traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable claim and no Court of Justice shall enforce, at his instance, or at the instance of any person claiming by or through him, any actionable claims so dealt with by him as stated above. Thus, in these circumstances where a law has prohibited purchase of property or to bid at an auction, the prohibition contained therein will be attracted and will become an offence under Section 169 IPC. 50. On a plain reading of the Section and seeking the assurance from the marginal heading as well, it is fairly clear that prohibition should flow from a law. Such law in the context of Section 169 IPC should mean that the law as ordinarily understood, that is to say, an enacted law or a rule or regulation framed under such law but not an executive order which confers no rights on anybody nor sets down legally enforceable obligations. The rules and administrative instructions governing the public servants holding the civil post have undisputedly no application in this case. The law, which is pointed out, is the Code of Con....
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....iscretion of such authority. Having regard to the facts and circumstances of the Code, the 'authority' shall evolve the appropriate procedure. Evidently, the nature of action to be taken on such enquiry is also left to him. Not being statutory, Courts will not enforce them." 53. At paragraph 50, it was further observed- "(i) There is no provision in the Constitution, nor is there any provision of law which regulates the conduct of a Minister-which expression includes Chief Minister and Prime Minister. There is also no constitutional or statutory provision prohibiting a Minister from engaging himself in any profession, occupation, or business, whether actively for gain or otherwise. (ii) The Code of Conduct issued by the Union Government-and by the State Government-is of great significance and sanctity, though it is not statutory. It fills a great void. The Code is evolved with an eye upon good Government and clean administration, not only in action but also in appearance. It is binding upon all Ministers. It prescribes the authority who shall ensure observance thereof. The procedure to be followed by him and the action to be taken thereon is also left to him. Similar r....
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....ent Company or Undertaking, the spirit and intention behind the Code of Conduct set out in para 2(b) is apparently not to maintain any such distinction. Whether appropriate language has been employed to give effect to such intention is a different matter. 55. That A-1 was a public servant and the properties were purchased by the firm in which she was a partner, would be insufficient to establish a charge under Section 169 against her as the main ingredient of the aforesaid provision is not established. The High Court is justified in holding that the first respondent is not guilty of the offence under Section 169 IPC and the other respondents not guilty of abetment. 56. The next charge we have to deal with is one arising under Section 409 IPC. Criminal breach of trust has been defined under Section 405 IPC. For the offence of criminal breach of trust by a public servant the punishment is provided under Section 409 IPC. The properties in question belongs to TANSI, a corporation which is a separate and distinct entity from the Government and the properties are held by it as owner and has complete control over the same except when the said properties are to be alienated, approval of ....
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....ous condemnation. Garafalo, an eminent criminologist, defined 'crime' in terms of immoral and anti-social acts. He says that "crime is an immoral and harmful act that is regarded as criminal by public opinion because it is an injury to so much of the moral sense as is possessed by a community - a measure which is indispensable for the adaptation of the individual to society." The authors of the Indian Penal Code stated that :- "....We cannot admit that a Penal Code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that, because an act is not punished at all, it follows that the legislature considers that act as innocent. Many things which are not punishable are morally worse than many things which are punishable. The man who treats a generous benefactor with gross ingratitude and insolence deserves more severe reprehension than the man who aims a blow in passion, or breaks a window in a frolic; yet we have punishment for assault and mischief, and none for ingratitude. The rich man who refuses a mouthful of rice to save a fellow-creature from death may be a far worse man than the starvi....
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....namental relic' in a museum but not to be practised ? These aspects do worry our conscience. Respondent No.1 in her anxiety to save her skin went to any length even to deny her signature on documents which her auditor and other Government officials identified. 62. Report leading to IPC makes it clear that criminal law merely prescribes the minimum standards of behaviour, while in public life, those who hold high offices should not take shelter under the umbrella of criminal law but stand by high probity. Further, criminal law is meant to deal with criminals ordinarily, while Code of Conduct is observed as gentlemen's agreement. Persons in public life, who are gentlemen, follow such Code instead of taking escape routes by resorting to technical pleas as arise in criminal cases. Persons in public life are expected to maintain very high standards of probity and, particularly, when there is likely to be even least bit of conflict of interest between the office one holds and the acts to be done by such person, ought to desist himself from indulging in the same. Such standards of behaviour were scrupulously observed in the earlier days after independence, but those values how no....