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2011 (5) TMI 1043 - SUPREME COURT

2011 (5) TMI 1043 - SUPREME COURT - AIR 2011 SC 2112, 2011 (6) SCC 508 - WRIT PETITION (CIVIL) NO. 150 OF 1997 - Dated:- 9-5-2011 - G.S. SINGHVI AND Dr. B.S. CHAUHAN, JJ. JUDGEMENT Dr. B.S. CHAUHAN, J. 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 D .....

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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 implementing the Act and other statutory provisions. 2. The instant writ petition was originally filed seekin .....

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titioner 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 following reliefs: "(1) Issue writ of mandamus and/or any appropriate writ and direct the CBI to investigate into all the land allotments and conversion of lands made by the NOIDA during the past 10 years. (2) Issue an appropriate .....

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97, this Court issued notice to the State of U.P. to indicate its consent to an investigation being made by the Central Bureau of Investigation (hereinafter referred to as CBI), in view of the very serious nature of the allegations. The State of U.P. had also received similar complaints and thus, it constituted a Commission of Inquiry headed by Justice Murtaza Hussain, a former Judge of Allahabad High Court to enquire about the same. The Commission completed its task and submitted its report. Th .....

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e 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 .....

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ghi, 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 .....

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, respondent no.8; Shri Ravi Mathur, respondent no.4; and one Shri S.C. Tripathi. The affidavit filed by Mrs. Neera Yadav, IAS, respondent no.7 was considered by this Court on 24.2.1998 and took note of the fact that in respect of the same/similar allegations made against Shri Bijendra Sahay, respondent no.8, the State Government had already accepted his explanation. So far as the allegations made against Shri Ravi Mathur, IAS, and Shri P.K. Mishra, respondent nos. 4 and 5 respectively and one S .....

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lso filed a complaint against some officers including Shri Ravi Mathur, IAS, respondent no.4 on 27.6.1997 before the Lok-Ayukta of U.P. However, the Lok-Ayukta vide letter dated 21.4.1998 to the State Government expressed his inability to conduct an enquiry against Shri Ravi Mathur, IAS, respondent no.4 and suggested that the matter be referred to the CBI. 8. This Court vide order dated 11.1.2005 constituted a Commission headed by Justice K.T. Thomas to examine a large number of issues, includin .....

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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 .....

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e 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 criminal prosecution can easily be launched. The matter requires .....

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orts of the Chairman, Board of Revenue and K.T. Thomas Commission and submitted that it is a fit case directing the CBI to conduct enquiry against the respondent no.4. However, Dr. Rajeev Dhavan has raised serious objection in respect of intervention of the respondent no. 7 and opportunity of hearing accorded to Shri K.T.S. Tulsi, learned senior counsel on her behalf that in a case of this nature the respondent no.7 had no locus standi and right to raise any grievance whatsoever. 12. Shri Rakesh .....

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n 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 can .....

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itted 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 sto .....

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.4 at this belated stage and this view stands fortified by the judgments of this Court in B.J. Shelat v. State of Gujarat & Ors., AIR 1978 SC 1109; State Bank of India v. A.N. Gupta & Ors., (1997) 8 SCC 60; State of U.P. & Ors. v. Harihar Bholenath, (2006) 13 SCC 460; UCO Bank & Anr. v. Rajinder Lal Capoor, AIR 2007 SC 2129; Ramesh Chandra Sharma v. Punjab National Bank & Anr., (2007) 9 SCC 15; and UCO Bank & Anr. v. Rajinder Lal Capoor, AIR 2008 SC 1831. 16 So far as the .....

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period of limitation in certain cases. Section 473 enables the court to condone the delay provided the court is satisfied with the explanation furnished by the prosecution or where the interest of justice demands extension of the period of limitation. This Court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762, dealt with the issue and observed as under: "14. The general rule of criminal justice is that a crime never dies. The principle is reflected in the well-known maxim nullu .....

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or 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 exam .....

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is 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." (Emph .....

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gations in respect of which this Court must direct the CBI enquiry. He has drawn our attention to the findings recorded by the Chairman, Board of Revenue on allegation nos. (iv), (ix) and (xiii) which are as under : Allegation No. (iv) : Shri Ravi Mathur allotted contracts worth ₹ 10 crores to different contractors on selection basis without inviting tenders. Findings: (i) The award of the contract to M/s. Anil Kumar & Co., was approved by the CEO. The argument that the usual process w .....

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n, which was approved by the CEO also. (para 1.4.3.5) (v) The proposal to award work to M/s. Fair Deal Engineers was faulty and the urgency 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 appea .....

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ed 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 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 reg .....

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.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 failed in his primary duty in advising the ACEO and CCEO. (para 1.13.7) (iii) There was no urgency for the development work in this sector. The development work was started and awarded without following the tender procedure in flagrant violation of established procedure for which the then Chief Project .....

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n awarded additional work by Shri Ravi Mathur, IAS, 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 p .....

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fected 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 .....

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ng 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 ₹ 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 t .....

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uot;Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law". 27. Thus, in case an authority proceeds in undue haste, 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 the respondent no.4 to proceed in such haste and why fresh tenders had not been invited. 28. It is evident from the record that the respondent no.4 had originally been allotted pl .....

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no.4 not only got the plot in a better location, but also a plot of bigger size. Second allotment was further, as alleged, in a far better geographical position. 29. There is no provision under the Act 1976 or Regulation 1991 for conversion. It is rather governed by Office Order No.4070/ NOIDA/DCEO/92 dated 3.7.1992. The relevant part thereof basically provides that conversion was permissible only in case of residential plots. Relevant part thereof reads as under: "3. In case of residential .....

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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 vario .....

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icable to the Act 1976. Section 17 of the Act 1976 declares that the Act 1976 would have an over- riding effect over the provisions of the Act 1973. Section 18 confers the power on the State Government to make rules by issuing a Notification for carrying out the purposes of the Act 1976. Section 19 of the Act 1976 provides for the framing of regulations by the NOIDA in respect of holding of meetings; defining the powers and duties of the CEO; and management of properties of the Authority etc. In .....

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hat particular purpose any area/site is to be used, namely, industrial, commercial or residential. The Authority is competent under sub-section 2(c) of Section 6, to regulate the construction etc. having regard to the nature for which the site has been earmarked. Section 8 of the Act 1976 restrains the use of any site for the purpose other than for which it is earmarked in the Master Plan. Section 9 prohibits the use of any area or erection of any building in contravention of Regulations 1991. S .....

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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 compete .....

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xercised 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 ar .....

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ctrine has grown from Article 21 of the Constitution. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. (Vide: M/s. Erusian Equipment & Chemicals Ltd. v. State of West Bengal & Anr., AIR 1975 SC 266; Ramana Dayaram Shetty v. The International Airport Authority of India & Ors., AIR 1979 SC 1628; Haji T.M. H .....

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