2017 (8) TMI 1746 - SC - Indian Laws

Conviction of the then Chairperson and Chief Executive Officer (CCEO) of NOIDA (New Okhla Industrial Development Authority) u/s 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act 1988 ( P.C. Act ) - complete abuse of power of public servant in the matter of allotment of land; out of turn allotments; their illegal conversions thereof; and unwarranted changes in layout plan of most developed Sector of NOIDA - scope of Section 31 Cr.P.C - HELD THAT - It is also proved by the prosecution that the appellant effortlessly got her smaller plot in Sector-32 measuring 300 sq.m. converted to a bigger plot in Sector-14A measuring 450 sq.m. and thereafter enhanced the area of the plot by 37% by illegal means and by abusing her position leading to a total area of 562.50 sq.m. Although the appellant has maintained that she had no role to play in the enhancement of area of plot No. 26 in Sector 14-A and further revision of layout plan of Sector-14A evidence available on record show otherwise. Evidence on record shows that revision of layout plan of Sector-14A was carried under the direction of the appellant and that too without following the norms of consulting the Engineering Department of NOIDA which was mandatory as per the rules. The said change in the layout plan not only benefitted the appellant in manifold ways but also caused huge financial loss to NOIDA as an unnumbered plot was considerably reduced in size and deformed in shape thereby rendering it completely useless for NOIDA. The appellant managed to seek allotment of shops in the favour of her daughters by herself preferring defective applications on their behalf and making payments in lieu of the same with the sole objective of securing a residential plot in lieu of the shops under Scheme (II) and (III) of 1994. The prosecution was successful in proving that the daughters of the appellant were dependant on the appellant and that they had purchased the shops and residential plots only out of the money contributed by the appellant and her husband. This amounts to grave violation of Rules of NOIDA and being a CCEO of NOIDA the appellant is guilty of obtaining valuable thing for herself and her daughters by abusing her position as a public servant. The daughters of the appellant were not even engaged in filing their applications as their signatures are missing from applications made on their behalf seeking allotment conversion etc. Upon consideration of the evidence on record we are of the view that the concurrent findings recorded by the trial court as well as by the High Court are based upon proper appraisal of facts and evidence and the concurrent findings do not suffer from any error warranting interference. In Special Case No. 28 of 2002 for the conviction of the appellant Neera Yadav under Section 13(2) read with Section 13 (1) (d) of the Prevention of Corruption Act 1988 the appellant was sentenced to undergo rigorous imprisonment for a period of three years with a fine of Rs. 1, 00, 000/- with default clause. In Special Trial No. 19 of 2002 for conviction under Section 120-B IPC and Section 13 (2) read with Section 13 (1) (d) of P.C. Act appellant Neera Yadav was sentenced to undergo rigorous imprisonment for a period of three years with a fine of Rs. 50, 000/- and similar imprisonment for conviction under Section 120-B IPC. Section 31 relates to the quantum of the punishment that the court has jurisdiction to pass that the accused is convicted of two or more offences at one trial. Section 427 Cr.P.C. deals with sentence passed on an offender who is already sentenced for another offence. The power conferred on the Court under Section 427 to order concurrent sentence is discretionary. The salutary principle adopted by the Court is the totality of the sentences. The maximum sentence awarded in one case against the same accused is relevant consideration while giving concurrent sentence in another case. The policy of the legislature is that normally the sentencing should be done consecutively. Only in appropriate cases considering the facts of the case the Court can make the sentence concurrently with an earlier sentence imposed. A person sentenced to imprisonment must for the purpose of Section 427 CrPC. be deemed to be undergoing that sentence from the very moment the sentence is passed. The accused may be on bail or in custody in the earlier case at the time of passing of the subsequent sentence. This instant case is one covered under Section 427 CrPC. As noted earlier appellant Neera Yadav has been convicted in two different cases one of abusing the official position in getting the plots allotted to herself and her daughters and other irregularities in making changes in the site plan and another one in abusing her position as CEO Noida conspired with Rajiv Kumar in allotting plot to him. Having regard to the facts and circumstances of the case and considering the nature of allegations in our view it is not justifiable to direct concurrency of sentence. Any unprincipled exercise of judicial discretion and casual direction made regarding concurrency would go against the express provisions of the Prevention of Corruption Act 1988 and the Criminal Procedure Code. Insofar as the sentence is concerned the occurrence was of the year 1994. The appellant Neera Yadav is undergoing sentence from 14.03.2016. With her conviction the service and getting retiral benefits are in jeopardy. Further husband of appellant Neera Yadav has filed an affidavit stating that the appellant surrendered plot No. 26 in Sector-14A along with building constructed in December 2013 and surrendered lease deed has been executed on 20.12.2013 in pursuance of the order dated 20.05.2013 of the Chief Executive Officer NOIDA. It is also stated that the said plot along with building constructed has been physically handed over to NOIDA authority on 24.12.2013. The appellant s husband has also withdrawn the protest affidavit dated 14.07.2014 filed before this Court in Writ Petition No. 150 of 1997 titled as NOIDA Entrepreneur Association v. NOIDA and Others. It is also submitted that she will not make any claim for refund. In the above facts and circumstances of the present case sentence of imprisonment of three years imposed on the appellant is reduced to two years. In the result the conviction of the appellant Neera Yadav is confirmed. The sentence of imprisonment of three years imposed on the appellant is reduced to two years and the appeal is partly allowed. Prayer for concurrent running of sentences of imprisonment is rejected.

Summary

The core legal questions considered by the Court include:

1. Whether the appellant, as Chairperson-cum-Chief Executive Officer (CCEO) of NOIDA, abused her official position under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, by obtaining valuable things or pecuniary advantage for herself and her daughters through illegal allotment and conversion of plots and shops in NOIDA.

2. Whether the allotment of plot No. B-002 in Sector-32 to the appellant and its subsequent conversion to plot No. 26 in Sector-14A was lawful and complied with the relevant rules and procedures.

3. Whether the appellant caused unjustified changes in the layout plan of Sector-14A, resulting in financial loss to NOIDA and undue advantage to herself.

4. Whether the allotment of shops and residential plots in favour of the appellant's daughters was lawful and complied with NOIDA's rules, particularly regarding eligibility and dependency.

5. Whether the prosecution proved beyond reasonable doubt that the appellant obtained valuable things by abusing her official position as a public servant.

6. Whether the sentences imposed on the appellant in two different cases involving separate transactions should run concurrently or consecutively.

Issue-wise Detailed Analysis

1. Abuse of Official Position under Prevention of Corruption Act

The Court examined Section 13(1)(d) read with Section 13(2) of the P.C. Act, which defines criminal misconduct by a public servant as obtaining valuable things or pecuniary advantage by corrupt or illegal means, or by abusing official position. The three sub-clauses under Section 13(1)(d) are independent and disjunctive, any one of which, if satisfied, constitutes criminal misconduct.

The Court noted that the prosecution alleged that the appellant abused her position as CCEO of NOIDA to obtain plots and shops for herself and her daughters by bypassing rules, submitting incomplete and ante-dated applications, and approving illegal conversions and layout changes.

2. Legality of Allotment and Conversion of Plot No. B-002 Sector-32 to Plot No. 26 Sector-14A

The legal framework comprised the NOIDA residential plot allotment scheme of 1994(i), which required complete applications with prescribed enclosures, attested photographs, proper payment by demand draft or pay order, and adherence to cut-off dates.

The Court found that the appellant's application was defective: undated, incomplete, lacking attested photograph and certificates, and accompanied by an ante-dated cheque instead of the required demand draft/pay order. The cheque was cleared well after the cut-off date, indicating manipulation to include the application post-closure.

The Court held that the incomplete application should have been rejected as per Clause 3 of the brochure, which mandates rejection of incomplete applications. The allotment of plot No. B-002 in Sector-32 was thus illegal and resulted from abuse of position.

Regarding conversion, the appellant's plot was converted to a larger plot in Sector-14A by a subordinate officer, contrary to the conversion policy requiring CEO approval or Board consideration. The appellant herself approved subsequent illegal enhancements in plot size and layout changes benefiting her personally, violating rules and causing loss to NOIDA.

3. Unjustified Change in Layout Plan of Sector-14A

The Court analyzed multiple site maps from 1984 to 1999, showing no changes for a decade, followed by frequent alterations during the appellant's tenure. These changes included carving out a 7.5 m wide road adjacent to the appellant's plot, increasing her plot size by 37.5%, and reducing an unnumbered plot's area drastically, rendering it unusable and causing financial loss to NOIDA.

Clause 11 of the brochure allows only marginal variation (up to 20%) in plot size; the appellant's plot size was increased far beyond this limit without justification. The Court found no cogent reason for these changes and held that the appellant's approval of the layout plan revisions was dishonest and constituted abuse of position.

4. Allotment of Shops and Plots in Favour of Appellant's Daughters

The prosecution contended that the appellant's daughters obtained shops and residential plots by submitting defective applications, which were incomplete, undated, unsigned, and lacked required documentation. The daughters were major but dependent on the appellant and her husband, who paid the registration and purchase amounts from joint accounts.

The scheme prohibited allotment of more than one plot to a person or family member. The daughters obtained shops and functional certificates without conducting business, solely to qualify for residential plot allotment. One daughter sold her shop after securing a residential plot, indicating mala fide intent.

The appellant's claim that the daughters had independent income and paid from inherited assets or loans was not substantiated by credible evidence. Bank testimonies showed payments were made from accounts controlled by the appellant and her husband. The loans taken by daughters were disbursed without their presence, further evidencing sham transactions.

The Court concluded that the allotments in favour of the daughters were illegal, obtained by abusing the appellant's official position, violating NOIDA's rules and causing loss to the public authority.

5. Obtaining Valuable Thing by Abusing Official Position

The Court observed that the appellant, as CCEO of NOIDA, was entrusted with ensuring compliance with rules and public interest. Instead, she bypassed procedures, accepted defective applications, manipulated records, approved illegal conversions and layout changes, and facilitated allotments to herself and family members.

The evidence showed the appellant's deliberate violation of rules, resulting in pecuniary advantage to herself and her daughters, and financial loss to NOIDA. The Court emphasized that such conduct erodes public trust and undermines governance.

The Court also cited authoritative precedents highlighting the pernicious impact of corruption and nepotism on democracy, governance, and public institutions, underscoring the need for strict enforcement of anti-corruption laws.

6. Concurrent or Consecutive Sentences

The appellant was convicted in two separate cases involving distinct transactions: one concerning allotments to herself and daughters, and another involving conspiracy with a third party for plot allotment irregularities.

The Court analyzed Section 31 Cr.P.C., which permits discretion to order sentences to run concurrently or consecutively when multiple offences are convicted at one trial. It also considered Section 427 Cr.P.C., which deals with concurrent sentences for multiple convictions arising from different trials.

Judicial precedents establish that concurrent sentences are generally favored when offences arise from a single transaction, but consecutive sentences are appropriate for distinct offences from different transactions.

Given the separate nature of the offences and transactions, the Court held it was not justifiable to order concurrent sentences. The Court reduced the sentence from three to two years' rigorous imprisonment but rejected the plea for concurrency.

Significant Holdings

"A public servant is said to commit the offence of criminal misconduct, if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any 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." (Section 13(1)(d) P.C. Act)

"Incomplete application and applications without enclosures as mentioned above for allotment of specific plot shall not be registered." (Clause 3 of the Scheme brochure)

"Corruption is an enemy of the nation and tracking down corrupt public servants, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment." (Constitution Bench)

"The discretion has to be exercised along the judicial lines and not mechanically." (On concurrent or consecutive sentences under Section 31 Cr.P.C.)

The Court confirmed the conviction of the appellant under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, holding that she abused her official position to obtain valuable things for herself and her daughters through illegal allotments and conversions, causing loss to NOIDA.

The Court held the allotment of plot No. B-002 Sector-32 and its conversion to plot No. 26 Sector-14A were illegal, as the appellant submitted defective and ante-dated applications and approved unauthorized layout changes.

The allotments in favour of the appellant's daughters were illegal, obtained through defective applications and sham transactions, violating NOIDA rules and the prohibition on multiple allotments to family members.

The Court emphasized the corrosive impact of corruption and nepotism on governance and public trust, reaffirming the necessity of strict judicial action against such misconduct.

The Court exercised discretion to reduce the sentence to two years' rigorous imprisonment but declined to order concurrent sentences for the two separate convictions.