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TMI Blog2011 (5) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... o. had been allotted originally the work on the basis of tender for ₹ 2.75 crores in Sector `Gamma' in Greater NOIDA, in connection with the construction of water drains. However, they had been awarded additional work by respondent no. 4, worth ₹ 3.75 crores on a deviation basis . In fact, awarding such work cannot be termed as an `addition' or `additional work' because the work is worth ₹ 1 crore more than the amount of original contract. In such a fact-situation, even if there had been no financial loss to the Greater NOIDA, indisputably, the additional work for such a huge amount had been awarded without following the procedure prescribed in law. More so, there is nothing on record to show as to whether the said contractor M/s Anil Kumar Co. was eligible to carry out the contract worth ₹ 6.50 crores. Awarding the contract under the garb of so-called extension, amounts to doing something indirectly which may not be permissible to do directly. Admittedly, such a course of action is not permissible in law. The second work had been allotted to M/s Techno Construction Co. worth ₹ 1.00 crore without inviting fresh tenders etc., on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The Legislature of Uttar Pradesh enacted the U.P. Industrial Area Development Act, 1976, (hereinafter referred to as `Act 1976') for the purpose of proper planning and development of industrial and residential units and to acquire and develop the land for the same. The New Okhla Industrial Development Authority (hereinafter referred to as the `Authority'), has been constituted under the said Act, 1976. The object of the Act had been that genuine and deserving entrepreneurs may be provided industrial and residential plots and other necessary amenities and facilities. Thus, in order to carry out the aforesaid object, a new township came into existence. All the activities in the Authority had to be regulated in strict adherence to all the statutory provisions contained in relevant Acts, Rules and Regulations framed for this purpose. However, from the very inception of the township, there has always been a public hue and cry that officials responsible for managing the Authority are guilty of manipulation, nepotism and corruption. Wild and serious allegations of a very high magnitude had been leveled against some of the officials carrying out the responsibilities of impleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed to be given to her and this Court vide order dated 6.1.1998 asked the State of U.P. as to whether this report had been accepted by the State Government and, if so, what was the likely follow up measure pursuant thereto. The State Government submitted a reply in response to the said show cause pointing out that the State Government proposed to initiate disciplinary proceedings against her. 4. In view of the material on record, this Court expressed tentative opinion that it would be more appropriate that the matter is investigated by the CBI and if such investigation discloses the commission of criminal offence(s), the persons found responsible should be prosecuted in a criminal court. However, considering the fact that allegations of a very high magnitude and gravity had been made against a large number of officials, this Court wanted the CBI to investigate first the cases against Mrs. Neera Yadav, IAS, respondent no.7, as is evident from the proceedings dated 20.1.1998, which reads as under: For the time being, we are directing the CBI to conduct an investigation in respect of the irregularities in the matter of allotments and conversions of the plots........... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order dated 11.1.2005 constituted a Commission headed by Justice K.T. Thomas to examine a large number of issues, including as to why disciplinary proceedings had been dropped by the State of U.P. against several officials who had been impleaded as respondents in this case. The Commission submitted the report dated 24.12.2005, and after considering the same, this Court vide order dated 8.12.2008 closed the proceedings against Shri Bijendra Sahay, respondent no.8. One Shri S.C. Tripathi also stood exonerated in earlier proceedings. In view of the order passed by this Court, the CBI conducted the enquiry against Mrs. Neera Yadav, IAS, respondent no.7 and filed a charge sheet against her. She was put on trial and proceeded with in accordance with law. 9. Thus, in view of the aforesaid factual matrix, this Court has to examine as to whether any action is warranted against Shri Ravi Mathur, IAS, respondent no.4 and if so, whether it is permissible to initiate the disciplinary proceedings against him as he reached the age of superannuation and has retired and the alleged misconduct had been committed by him in 1993-94, and as to whether the misconduct is of such a grave nature th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time barred. All the allegations had been made against the said respondent no.4 at the behest of respondent no.7, thus, suffers from mala fide and bias. The said respondent had paid the transfer charges only once to the tune of ₹ 1.80 lacs. The second conversion had subsequently been cancelled by the respondent no.7 herself. Due to pendency of this case, the said respondent could not get the physical possession of any of the plots. The change of user of the land in Sector 32 was made in good faith. More so, such a change was cancelled and the green area was restored by the respondent no.7 herself. The contract given by the respondent no.4 to certain contractors had been at the rate on which they had been working earlier. Thus, the Authority did not suffer any loss whatsoever. 13. Before we proceed with the case on merits, we would like to make it clear that Mrs. Neera Yadav, IAS, respondent no.7, had been given an opportunity by this Court vide order dated 20.1.1998 to file her affidavit disclosing the delinquency committed by other officers. In pursuance of the said order, she submitted her affidavit. Therefore, it is not possible for us at such a belated stage to deny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding against offenders)....... It is settled law that a criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of Law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of Law would not by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict. 17. The aforesaid judgment was followed by this Court in Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368. 18. Thus, it is evident that question of delay in launching criminal prosecution may be a circumstance to be taken into consideration in arriving at a final decision, but it cannot itself be a ground for dismissing the complaint. More so, the issue of limitation has to be examined in the light of the gravity of the charge. 19. Thus, we have to examine as to whether the said respondent could be tried for commission of an offence, if any, under the provisions of the Act, 1988. Section 13 thereof, reads: Criminal misconduct by a publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gency clause was not well defined. The note was approved by the CEO. (para 1.4.3.6) (vi) The argument of urgency advanced is not acceptable in some cases (para 1.4.4). At least in one case there was not even a necessity to award the work. (para 1.4.4) (vii) No cogent regions were given in the note file for selecting a particular contractor. Some of the notes appear to be tailor made. The works were got done by the Manager/Senior Manager through hand picked contractors without inviting tenders and without following financial norms. (para 1.4.4.) Allegation No. (ix): Shri Ravi Mathur caused financial loss to NOIDA by not paying conversion charges with respect to the plot allotted to him. He initially asked for conversion from Sector 35 to Sector 27 but since he did not deposit the required amount the offer of conversion was withdrawn. Subsequently he applied for conversion from Sector 35 to Sector 44. Findings: The only conversion which took place was from Sector 35 to Sector 44 for which conversion charges were deposited. It is a matter under the exclusive competence of the Authority and its Chief Executive as to whether it was to be treated as two conversions or one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the garb of so-called extension, amounts to doing something indirectly which may not be permissible to do directly. Admittedly, such a course of action is not permissible in law. 22. It is a settled proposition of law that whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud , which means whenever a thing is prohibited, it is prohibited whether done directly or indirectly . (See: Swantraj Ors. v. State of Maharashtra, AIR 1974 SC 517; Commissioner of Central Excise, Pondicherry v. ACER India Ltd., (2004) 8 SCC 173; and Sant Lal Gupta Ors. v. Modern Co-operative Group Housing Society Ltd. Ors., JT (2010) 11 SC 273). 23. In Jagir Singh v. Ranbir Singh Anr., AIR 1979 SC 381, this Court has observed that an authority cannot be permitted to evade a law by shift or contrivance. While deciding the said case, the Court placed reliance on the judgment in Fox v. Bishop of Chester, (1824) 2 B C 635, wherein it has been observed as under:- To carry out effectually the object of a statute, it must be construed as to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersion was permissible only in case of residential plots. Relevant part thereof reads as under: 3. In case of residential plots, only cancelled and surrendered properties shall be offered for conversion......... The details of availability of properties shall be available in the office of Dy. Chief Executive Officer. xx xx xx xx xx xx 6. All expenses pertaining to conversion such as conversion charges, locational benefit charges, stamp duty, registration charges etc. shall be borne by the allottee. xx xx xx 8. Conversion shall not be allowed more than once to any allottee. xx xx xx 11. Chairman-cum-Chief Executive Officer may relax the above guidelines in exceptional circumstances. 30. The aforesaid Office Order dated 3.7.1992 stood modified vide order dated 27.9.1993 (when the respondent no.4 was the CEO, NOIDA) to the effect that a large number of vacant plots were available in old developed sectors. The same may be included in the plots availability list. 31. That the list of available plots had been expanded during the period when the respondent no.4 was CEO, NOIDA and unallotted plo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Master Plan or in the Regulations 1991 before the change of user of land, when a 13 hectare City Park situated near Sectors 24, 33 and 35 was abolished and a new residential Sector 32 was carved out comprising 200 plots. Even if the said change made by Shri Ravi Mathur, IAS, respondent no.4 stood nullified, subsequently by Smt. Neera Yadav, respondent no.7, it does not exonerate him from committing an illegality. It is a matter of investigation as to what was the motive for which such a change had been made by Shri Ravi Mathur, IAS, respondent no.4, unauthorisedly and illegally. Admittedly he was not competent to do so without seeking the amendments as mentioned hereinabove. 34. The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse etc., acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 SC 16; Sirsi Municipality v. Ceceila Kom Francis Tellis, AIR 1973 SC 855; The State of Punjab Anr. v. Gurdial Singh Ors., AIR 1980 SC 319; The Collector (Distt. Magistrate) Allahabad Anr. v. Raja Ram Jaiswal, AIR 1985 SC 1622; Delhi Administration (Now NCT of Delhi) v. Manohar Lal, (2002) 7 SCC 222; and N.D. Jayal Anr. v. Union of India Ors., AIR 2004 SC 867). 36. In view of the above, we are of the considered opinion that these allegations being of a very serious nature and as alleged, the respondent no.4 had passed orders in colourable exercise of power favouring himself and certain contractors, require investigation. Thus, in view of the above, we direct the CBI to have preliminary enquiry and in case the allegations are found having some substance warranting further proceeding with criminal prosecution, may proceed in accordance with law. It may be pertinent to mention that any observation made herein against respondent no.4 would be treated necessary to decide the present controversy. The CBI shall investigate the matter without being influenced by any observation made in this judgment. The writ petition stands disposed of accordingly. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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