TaxTMI 
TaxTMI 
2017 (8) TMI 1578
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....120-B Indian Penal Code. The High Court also confirmed the sentence of imprisonment for three years and fine of Rs. 50,000/- imposed on Appellant Rajiv Kumar for conviction Under Section 13(2) read with Section 13(1)(d) of P.C. Act with default clause. 2. It is a well known fact that New Okhla Industrial Development Authority U.P. (hereinafter referred to as "NOIDA") was established in the year 1976 with the responsibility of developing and managing Asia's largest Integrated Industrial Township for the industrial growth of the area, under the Uttar Pradesh Industrial Area Development Act, 1976 in the National Capital Region. Administration of NOIDA was entrusted to high level public officials so as to develop a planned, integrated, modern Industrial City, well connected to Delhi through a network of roads, national highways and the ultra-modern DND flyover, offering inter-road linkages to all parts of the country. Spread over 20,316 hectares, with many sectors fully developed, NOIDA was to offer a pollution free high standard of living and highly supportive industrial environment with its unique infrastructure providing numerous, matchless facilities. However, the project go....
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....av converted plot No. 27 which was reserved for Government Guest House as residential to obtain pecuniary advantage for Rajiv Kumar. Lease deed in his favour and in favour of his wife was executed on 27.07.1995. After execution of lease deed, on application of wife of Appellant Rajiv Kumar on 26.10.1995 for extension of width by 3.5 mts., which was reported to have been found in excess from plot No. 28 on 28.10.1995, the proposal for its allotment to Appellant Rajiv Kumar by way of enhancement was approved by Appellant Smt. Neera Yadav on 05.11.1995 and the same was allotted to Rajiv Kumar and thus the area of plot No. 27 allotted to him was enhanced by 105 sq.ms., totalling to 405.00 sq.ms, by getting the note presented through PW-17 Smt. Rekha Devyani, the then Town Planer and PW-16 Sri Tribhuwan Singh, the then Chief Architect Planner. Sanction was obtained Under Section 19(1) of P.C. Act and after completion of investigation into the allegations levelled against the Appellants, charge sheet was filed against the Appellants stating that the Appellants entered into a criminal conspiracy, abusing their position as public servants, with an object of procuring pecuniary advantage to....
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....aseless. By conversion of plot to Sector-14A, the Appellant has actually compromised with the area of the plot and has also paid additional conversion charges and thus, it would be inappropriate to suggest that the Appellant caused any loss to NOIDA nor was there any pecuniary advantage to the Appellant. With regard to allotment of additional area of 105 sq.ms., the Appellant paid extra charges for the said land and the High Court erred in holding that there was misutilisation of the said area of 105 sq.ms. By getting the said additional land, the Appellant had actually benefited NOIDA, as the concerned piece of land was found in excess of adjoining plot No. 28 and it would have been of no use had it not been allotted to the Appellant. There was no prior meeting of minds nor did exist there any conspiracy between the Appellant-Rajiv Kumar and the Appellant-Neera Yadav and that the contradictory versions of prosecution witnesses have failed to bring home the charge of conspiracy. 7. The learned Counsel for the Appellant Neera Yadav also contended that the courts below have wrongly arrived at the conclusion that the Appellants with d....
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....valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or A perusal of the above provision makes it clear that if the elements of any of the three sub-clauses are met, the same would be sufficient to constitute an offence of 'criminal misconduct' Under Section 13(1)(d). Undoubtedly, all the three wings of Clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, Under Section 13(1)(d)(i) of P.C. Act obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. On the same reasoning Under Section 13(1)(d)(ii) of P.C. Act "obtaining a valuable thing or pecuniary advantage" by abusing his official position as a public servant, either for himself or for any other person would amount to criminal misconduct. 11. Allotment of Plot contrary to the Scheme and Dishonest Intention of the Appellants: Appellant Rajiv Kumar was working as Deputy Chief Executive Officer (Dy. CEO) in NOIDA w.e.f. 14.06.1994. He applied for allotment of residen....
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....ted 15.10.1994. Ex. Ka-31 shows that conversion of plot No. B-86 in Sector-51 to plot No. A-36 in Sector-44 was approved by the concerned authorities in Noida. PW-18 G.C. Tiwari has deposed that paper No. 8 Ka/96 is carbon copy of the conversion letter which bears the signature of R.P. Kalra, Development Manager (Residential). Paper No. Ka/96 dated 15.10.1994 (Ex. Ka-31) which bears signature of R.P. Kalra, Development Manager (Residential) which shows that Rajiv Kumar was allotted plot No. A-36 in Sector-44 in place of B-86, in Sector-51. From the evidence of PW-18, it is thus established that Appellant Rajiv Kumar was allotted plot No. A-36 in Sector-44 in place of plot No. B-86 in Sector-51. By the evidence of PW-18, prosecution has proved the first conversion and allotment order i.e. paper No. 8 ka/94 as Ex. Ka-33, Note Sheet paper No. 8 ka/1 dated 15.10.1994, written by V.K. Sharma, Assistant Development Manager, forwarded to Development Manager Sh. R.P. Kalra and marked to PW-18. 14. Though Appellant Rajiv Kumar pleads that there was no double conversion of plot, the same is falsified by his own application (Ex. Ka-32), after the Appellant's request for conversion of p....
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....ut the said conversion of plot No. B-86, Sector-51 to plot No. A-36, Sector-44, the same is difficult to digest. The Appellant as the Deputy CEO, must have been aware of the conversion of his plot to plot No. A-36 in Sector-44. Furthermore, as discussed above in Appellant's own letter Ex. Ka-32, the Appellant has stated that allotment of plot in Sector-44 is not according to his requirement and requested for allotment of plot only in Sector-14A. 16. Subsequently, Appellant Rajiv Kumar was allotted plot No. 27 measuring 300 sq.ms. in Sector-14A in place of plot No. B-86 in Sector-51 vide Ex. Ka-33 (Paper No. 8 Ka/94 dated 17.10.1994). The second conversion of the plot in Sector-14A is contrary to the Rules and the scheme. Paper No. 20ga/1 to 20ga/2 contains NOIDA's office order dated 03.02.1992 which lays down exhaustive Rules with regard to conversion of residential plots/houses/flats/apartments. The said office order begins with the phrase, "in suppression of all previous orders, conversion of residential plots/houses/flats/apartments shall be governed by the conditions as given below:", meaning thereby that all the conversions of residential plots/houses/flats/apartmen....
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....that conversion is being carried out from Sector-44 to Sector-14A; but it is written that conversion has been done to Sector-14A from Sector-51. 19. In our considered view, on the findings of the trial court as affirmed by the High Court, the courts were not right in saying that there was no double conversion, rather, conversion was done only once. As discussed earlier, in his evidence, PW-18 G.C. Tiwari has clearly proved Ex. Ka-31 (Paper No. 8ka/96), the carbon copy of conversion letter which bears signature of R.P. Kalra, Development Manager (Residential) and states that Rajiv Kumar was allotted plot No. A-36 in Sector-44 in place of plot No. B-86 in Sector-51. It may be that the said conversion letter Ex. Ka-31 dated 15.10.1994, allotting plot No. A-36 in Sector-44 might not have been signed by CCEO Neera Yadav; but there is ample evidence to show that Appellant Rajiv Kumar was allotted plot No. A-36 in Sector-44. 20. Another reasoning given by the trial court, that in Ex. Ka-33 instead of stating that conversion is being carried out from Sector-44 to Sector-14A, it is stated that conversion is being carried out from Sector-51 to Sector-14A. Trial court's view affirme....
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....in Sector-14A. Being Deputy CEO of NOIDA, Appellant must have been well aware of allotment of plot No. B-86 in Sector-51 in the draw of lots. Knowing fully well that he was allotted plot No. 86 in Sector-51, on the very same day of draw of lots i.e. on 21.09.1994, the Appellant instructed PW-17 Rekha Devyani to alter the user of plot No. 27 in Sector-14A from "guest house" to "residential". On 21.09.1994, on the direction of the Appellant, Ex. Ka-17 note was put up by PW-17 Rekha Devyani for conversion of plot No. 27 from guest house to residential plot and the same was approved by the co-accused Neera Yadav on 24.09.1994. Plot No. 27 in Sector-14A was dishonestly converted to a residential plot and on 17.10.1994, plot No. 27 measuring 300 sq.m. was allotted to Appellant Rajiv Kumar and lease deed of plot No. 27 was executed in favour of Appellant Rajiv Kumar and his wife Smt. Neeva Kumar on 27.07.1995. At first, the Appellant deliberately converted the character of plot No. 27 from guest house to residential and also reduced the areas of the plot to 300 sq.ms. and then he applied for allotment (Ex. Ka-32) of a small plot only in Sector-14A. This clearly manifests Appellant's d....
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....rate attempt made with ulterior motive to cause benefit to Appellants and clearly they have been made so substantially that the matter beneath them may not be read by naked eyes even after efforts. 27. It is the case of prosecution that paper No. 23-A is the photocopy of the actual proposal of converting plot No. 27 from guest house to a residential plot, which existed originally and that Ex. A-16 is only a subsequent copy of the proposal which has been altered by the Appellants by cuttings and interpolations so as to suit their requirements. In order to bring forth the illegality in the act of the Appellants and the mala fide conversion of plot No. 27 from "guest house" to "residential plot", by subsequent cuttings and interpolations, the prosecution has relied upon paper No. 23-A, which is a photocopy of proposal dated 28.05.1994. PW-21 Dev Dutt (the then Dy. CEO) has deposed in the court to the effect that cuttings in Ex. A-16 dated 28.05.1994 were made subsequently. PW-21 Dev Dutt produced a copy of paper No. 23-A which does not have any cuttings and overwritings. He deposed that the true photo copy of Ex. A-16 signed by him and approved by CCEO on 31.05.1994 and that its ph....
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....st 31.10.99 w.e.f. 6.11.95 Area of appurtenant Green Belt in North Total area of plot with appurtenant Green Belt 1 26 630.00 450.00 450.00 562.50 562.50 562.50 783.86 1346.36 2 27 482.50 450.00 450.00 525.00 300.00 405.00 535.15 940.75 3 28 371.25 450.00 450.00 487.50 487.50 487.50 593.4 1080.71 4 Unnumbered plot towards West NIL 529.35 304.35 90.00 304.35 Trapezium of (3.16+9.57)/2 W30=231.45 49.8 240.75 5 Green Belt Area towards West Rectangle of (7.93W30) =237.90 Rectangle of (7.93W30= 237.90 Rectangle of 7.93W30= 237.90 Trapezium (7.23+7.93)/ 2W30=227.4 Rectangle of 7.93W30= 237.90 Trapezium of (7.93+7.50)2 W30=231.45 - 231.45 6 Total Area 2311.65 2706.29 2481.89 2493.89 2445.89 2469.74 - 3840.02 Note: As seen from the endorsement in the above maps, the maps have been prepared by the architect and the Chief Architect Planner (30.10.1999) with reference to the letter No. Dy. SP. ACU VII/1999/0603 dated 08.09.1999 and direction given by the SP ACU VII CBI and in the meeting held on 25.10....
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....f. 32. Alteration of position of plots was not an exercise of power in good faith. In this regard, we may usefully refer to the decision in Noida Entrepreneurs Association v. NOIDA and Ors. (2011) 6 SCC 508, wherein this Court highlighted the nature of powers and duties vested in a public authority in the following words: 41. Power vested by the State in a Public Authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact-situation of a case. "Public Authorities cannot play fast and loose with the powers vested in them". A decision taken in arbitrary manner contradicts the principle of legitimate expectation. An Authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other. (Vide: Commissioner of Police, Bombay v. Gordhandas Bhanji AIR 1952 SC 16; Sirsi Municipality v. Ceceila Kom Francis Tellis (1973) 1 SCC 409; The State of Pun....
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....e, the Court may draw an adverse inference from such conduct. It further creates a doubt that if there was no sufficient reason of urgency, what was the occasion for Respondent 4 to proceed in such haste and why fresh tenders had not been invited. In the present case also, undue haste shown at every stage only leads to an inference of abuse of position and arbitrariness and also the conspiracy. 35. Allotment of additional area: Yet another abuse and misuse of position by the Appellants is manifested in allocation of the additional area. After execution of the lease deed, within three months on 26.10.1995, wife of the Appellant who is a co-allottee of plot No. 27 in Sector-14A, filed a representation stating that due to lesser width of the concerned plot, after leaving space as per prescribed setback, it was not possible to construct a house and, therefore, requested that the width of the allotted plot should be increased by 3.50 mtrs. and an additional area of 105 sq.ms. may accordingly be allotted. Here again, within two days, on 28.10.1995, a note was put up (Ex. Paper 79 ka/1) for allotting additional area of 105 sq.ms. in which it was proposed that the required additional....
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....hown in the layout plan and the 3 m. wide extra space which is available at site has been included in the dimension of plot No. 27 which will now be measuring 13 x 30 m. It is requested that the same may be finally approved so that the DM(R) and Town Planner could be informed accordingly to finally incorporate the same in their records also. Submitted please. Sd/- (A.K. Goel) PROJECT ENGINEER (III) CCD-III, NOIDA D.C.E.O. NOIDA above is approved. Sd/- (Rajiv Kumar) D.C.E.O., NOIDA 01-12-95 The Appellant's wife had asked for an additional area of 105 sq.m. vide letter dated 26.10.1995 and surprisingly the same area is stated to be available on ground in Plot No. 27. One fails to understand as to how the exact area as requested by the Appellant's wife could actually be available in the plot. However, an additional note in Ex. Ka-27 exists which states that the additional area sought for was already available in plot No. 27; this clearly shows that the intention of the Appellants was to dishonestly derive benefit from the valuable property of NOIDA. The swiftness with which the Appellant got the a....
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....ficate dated 27.09.1994 w.r.t. plot No. B-86 in Sector-51, as contained in Ex. Ka-29 provides that Plot No. 86, Block B, Sector-51 was allotted to Appellant Rajiv Kumar on 'as is where is basis' on lease for a period of 90 years from the date of execution of lease deed. In the details of the allotted plot, it was clearly mentioned that a premium amount of Rs. 5,40,000/- @ Rs. 1200/- per sq.m. needs to be deposited by the allottee. This makes it clear that the plots in Sector-51 were allotted in lieu of a premium amount @ Rs. 1200/- per sq.m. It is noteworthy that three category of charges find place in the letter of NOIDA dated 15.10.1994 (Ext. Ka-31) viz. 'cost of additional area', 'conversion charges', and 'location benefit charges'. Although, only conversion charge was applicable in case of conversion of plot No. B-86 in Sector 51 to plot No. A-36 in Sector-44, but it is apparent that 'cost of additional area' and 'location benefit charges' could also be attracted in case of conversion. As discussed earlier, Appellant Rajiv Kumar was further successful in securing conversion of plot No. A-36 in Sector-44 to plot No. 27 in Sector-14....
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....nd applied for, and a marginal increase or decrease in area upto a maximum of 20% on either side may be found and to meet such an eventuality of any difference of area on the spot, no unnecessary dispute may be raised and in case of any such increase or decrease the value of plot allotted will be increased or decreased proportionately. However, in case of increase or decrease in the area of plot allotted is more than 20%, the allottee may refuse to accept allotment on the ground of such variation and will be entitled to refund of his registration money and the authority may not forfeit any part of it, which the authority can, in case of refusal to accept allotment by allottee without any such reason. Enhancement of area of plot No. 27 (originally 300 sq.m.) by 105 sq.ms. in the name of extension of width amounts to 35% enhancement of original area of plot No. 27, which is ex facie arbitrary and contrary to the rules. Apparently, increase of area of a plot over and above the maximum limit of 20%, as mentioned in Clause 11 will fall in the category of fresh allotment which is prohibited in the Rules. In any case, in the alleged conversion policy or anywhere else, there is no provisio....
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....ge itself. 45. After referring to Yash Pal Mittal v. State of Punjab (1977) 4 SCC 540 and Ajay Aggarwal v. Union of India and Ors. (1993) 3 SCC 609, in State of Maharashtra and Ors. v. Som Nath Thapa and Ors. (1996) 4 SCC 659 in para (24), it was held as under: 24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use. The above judgment was quoted with approval in Ram Narain Popli v....
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....the same to Appellant by flouting the Rules and the circular. 48. On appreciation of evidence and materials on record, both the trial court and the High Court recorded concurrent findings that the Appellants acted in clear abuse of position, plot No. 27 in the developed Sector-14A was converted from guest house to 'residential' and in violation of the norms and circulars, the same was allotted to the Appellant to gain pecuniary advantage to him (Rajiv Kumar). The concurrent findings recorded by the courts below are well balanced and we do not find any reason warranting interference. 49. Corruption has spread its tentacles almost on all the key areas of the State and that it is an impediment to the growth and development of the country. After referring to Yash Pal Mittal v. State of Punjab (1977) 4 SCC 540; Ajay Aggarwal v. Union of India and Ors. (1993) 3 SCC 609; State of Maharashtra and Ors. v. Som Nath Thapa and Ors. (1996) 4 SCC 659 and Ram Narain Popli v. Central Bureau of Investigation (2003) 3 SCC 641, in Criminal Appeal No. 253 of 2017 (Neera Yadav v. State of U.P. and Anr. in paragraphs (53) to (57), we have observed that there has to be unrelenting stern act....