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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 ..... 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 implementing the Act and other statutory provisions. 2. The instant writ petition was originally filed seeking a large number of reliefs including the allotment of industrial and residential plots to the members of the petitioner-Association and a large number of officials who had acted as Chief Executive Officers (hereinafter referred to as `CEO') of the Authority had been impleaded therein as respondents. However, considering the fact that relief for personal benefits of the members had been sought and alternative means for seeking the redressal of grievances in that respect were available, the petitioner made a request to the Court that its petition may be treated as a public interest litigation (in short `PIL') for a limited purpose. This Court vide order dated 21.4.1997 treated the matter as PIL and issued show cause notice only to the extent of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigate 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........... Shri G.L. Sanghi, the learned senior counsel appearing for respondent no.7 states that though the respondent no.7 does not admit that she has committed any irregularity in the matter of allotment or conversion of plots in NOIDA but according to respondent no.7 there are other persons who might have committed such irregularity and she seeks leave to file an affidavit in this regard. She may file an affidavit giving particulars of such irregular allotments and in the event of such affidavit being filed further directions in that regard will be given." (Emphasis added) This Court by the same order also issued certain directions with regard to irregular allotments and conversion of plots which had been found to have been made in the report of Justice Murtaza Hussain Commission. 5. In view of the above referred to order, Mrs. Neera Yadav, IAS, respondent no.7 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted 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 that it warrants the criminal prosecution and if so, what should be the agency which may be entrusted with the investigation and prosecution. 10. Shri K.T.S. Tulsi, learned senior counsel appearing for respondent no.7 submitted that on similar allegations, this Court had directed CBI to initiate criminal proceedings against his client and criminal prosecution has been launched and ended in logical conclusion, thus, there could be no justification not to initiate the similar proceedings against Shri Ravi Mathur, IAS, respondent no.4. Not initiating the proceedings on the similar or more grave charges would amount to treating the said respondent no.7 with hostile discrimination. The disciplinary proceedings cannot be initiated against him in view of delay and latches as the statutory rules applicable do not permit such a course at such a belated stage. The cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear 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 her the right of hearing and ignore the submissions made by her counsel, Shri K.T.S. Tulsi. (vide: V.S. Achuthanandan v. R. Balakrishna Pillai & Ors., (2011) 3 SCC 317). 14. We have considered the rival submissions made by learned counsel for the parties and perused the record. 15. The services of Shri Ravi Mathur, IAS, respondent no.4 stood governed by All India Services (Death-cum-Retirement Benefits) Rules, 1958. Rule 6(b), thereof, provides that in case the delinquent had already retired, the proceedings shall not be instituted against him without the sanction of the Central Government and shall be in respect of an event which took place not more than four years before the institution of such proceedings. Thus, it is evident that law does not permit holding disciplinary proceedings against Shri Ravi Mathur, IAS, respondent no.4 at this belated sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 public servant.- (1) A public servant is said to commit the offence of criminal misconduct,- (b) ......... (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or (d) 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." (Emphasis added) 20. Shri Ravi Mathur, IAS, respondent no.4 had been the CEO, NOIDA from July 1993 to 9.1.1994 and the CEO, Great ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersion 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 conversion only. It appears that it was a subtle and fine way to help a fellow officer. In any event Smt. Neera Yadav had approved the second application on 26.10.1994. The file regarding the allotment and conversion of plot of Shri Ravi Mathur is not traceable in NOIDA but that is for the Authority to take appropriate action. (para 1.9.5) Allegation No. (xiii): A 13 hectare City Park situated near Sectors 24, 33 and 35 in NOIDA was destroyed and a new residential Sector 32 in violation of the Master Plan was carved out comprising of 200 plots. Findings: (i) The procedure as prescribed in the 1991 Regulations was not followed while making the change of land use. (para 1.13.7) (ii) The decision of land use change was based on logic but the proposal should have been put up before the Board. The then Chief Architect Planner did not point out this legal requirement and fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined." 24. The second work had been allotted to M/s Techno Construction Co. worth Rs. 1.00 crore without inviting fresh tenders etc., on the ground that earlier a contract for execution of similar work i.e. construction of road had been awarded to it. In view of the fact that there was no urgency, such a contract should not have been awarded. Undoubtedly, the respondent no.4 is guilty of proceeding in haste and that amounts to arbitrariness. 25. While dealing with the issue of haste, this Court in the case of Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia & Ors., (2004) 2 SCC 65, referred to the case of Dr. S.P. Kapoor v. State of Himachal Pradesh & Ors., AIR 1981 SC 2181 and held that: ".....when a thing is done in a post-haste manner, mala fide would be presumed." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 plots of various sectors including Sector 27 were also included in that list in which the respondent no.4 himself got the first conversion. It is a matter of investigation as to whether the Order dated 3.7.1992 was modified vide Order dated 27.9.1993 with ulterior purpose. 32. Section 12 of the Act 1976 makes the provisions of Chapter VII and Sections 30, 32, 40 to 47, 49, 50, 51, 53 and 58 of the U.P. Urban Planning and Development Act 1973 (hereinafter referred to as the `Act 1973') mutatis mutandis applicable to the Act 1976. Section 17 of the Act 1976 declares that the Act 1976 would have an over- riding effect over t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 a public office is a trustee. State actions required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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