TMI Blog2017 (8) TMI 1578X X X X Extracts X X X X X X X X Extracts X X X X ..... ndependent, 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. 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. The conviction of the Appellants Rajiv Kumar and Neera Yadav is confirmed - The sentence of imprisonment of three years imposed on the Appellants is reduced to two years and the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the management and control of NOIDA itself. In this connection, several complaints surfaced alleging irregularities in allotments and conversions of land in 'NOIDA'. Explanation was sought in this regard by the then Principal Secretary (Heavy Industries) of the Government of U.P. from Appellant Neera Yadav. But, final decision was taken not to initiate any departmental inquiry in the matter against the officials concerned. 3. One 'NOIDA Entrepreneurs Association' sought inquiry by the Central Bureau of Investigation (in short the 'CBI') in the matter and this Court vide order dated 20.01.1998 directed that the matter be investigated by the CBI. Consequently, the CBI registered an F.I.R. being Crime No. RC/3(A)/98-ACU-VII dated 26.02.1998 against Ms. Neera Yadav who was serving as Chairperson and Chief Executive Officer (CCEO) of NOIDA, during the relevant period viz. from 10.01.1994 to 08.11.1995, and some other high officials of NOIDA. The FIR contained allegations to the effect that Ms. Neera Yadav in conspiracy with other officials abused her position while committing grave irregularities in the matters of allotments and conversions of lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med against the Appellants. To substantiate the charges, as many as twenty three witnesses were examined by CBI apart from documentary evidence. The statements of Appellants Under Section 313 Code of Criminal Procedure were recorded and opportunity to adduce evidence in their defence was also given. Upon consideration of evidence, the Special Judge CBI, Ghaziabad, vide judgment dated 20.11.2012 in Special Trial No. 19 of 2002, convicted the Appellants Under Section 120-B Indian Penal Code read with Section 13(2) read with Section 13(1)(d) of P.C. Act and Under Section 13(2) read with Section 13(1)(d). For conviction Under Section 13(2) read with Section 13(1)(d) of P.C. Act, Appellant Rajiv Kumar was sentenced to undergo rigorous imprisonment for a period of three years and fine of ₹ 50,000/- with default clause. For conviction Under Section 120-B Indian Penal Code, the trial court sentenced each of the Appellants to undergo rigorous imprisonment for a period of three years and fine of ₹ 50,000/- was imposed on each of the Appellants. As noted earlier, on appeal, the conviction and sentence of imprisonment and fine imposed on each of the Accused were affirmed by the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts by illegal means in conversion of plot No. 27 from guest house to residential and allotting the same to the Appellant Rajiv Kumar in most developed area. It was further contended that the Appellant Neera Yadav, being the CCEO of NOIDA was duty bound to approve the genuine proposals or resolutions brought before her in discharge of ordinary course of her official work and the orders of conversion and allotment of additional plot of 105 sq.ms. were passed in discharge of regular official work and for doing so she may not be held guilty for committing any criminal conspiracy Under Section 120-B Indian Penal Code or for committing any offence of criminal misconduct Under Section 13(2) read with Section 13(1)(d) of P.C. Act. 8. Per contra, learned Solicitor General Mr. Ranjit Kumar contended that the courts below have rightly convicted the Appellants on the charge of committing conspiracy in the matter of illegal and arbitrary allotment of plots in their favour, in favour of their kith and kin as well as in favour of different persons mentioned in F.I.R. by abusing their position as public servants. 9. We have carefully considered the rival submissions advanced on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llotment of residential plots to various category of persons specified therein, in Sectors 41, 49, 51 and 53 only. Appellant Rajiv Kumar had applied on 16.08.1994 (Ex. Ka-13) under Category-VI, as a regular employee of NOIDA, for the larger size plot, Plot Code-06 measuring 450 sq.ms., for which he had paid registration amount of ₹ 50,000/-. Notably, the Appellant had made a conscious decision of seeking allotment of a residential plot in Sectors 41, 49, 51 and 53. The lottery was drawn on 21.09.1994 and vide allotment order dated 27.09.1994 (Ex. Ka-29) plot No. B-86 in Sector-51 measuring 450 sq.ms. was allotted to the Appellant. The Appellant was thus allotted a plot in Sector-51 exactly of the same description as sought for by him. 12. A perusal of the terms and conditions of the Scheme for allotment of residential plots in Sectors 41, 49, 51 and 53 shows that there is no provision for conversion of plots. Even the letter of allotment, Ex. Ka-29 dated 27.09.1994, does not provide for conversion of plots. On the contrary, Ex. Ka-29 only states that the allottee (Appellant) would have no right to change of plot or refund of earnest money deposited by him in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotting plot No. A-36 in Sector-44, in place of plot No. B-86 in Sector-51, on the very same date i.e. on 15.10.1994, vide Ex. Ka-32 Appellant made another application emphasizing allotment of a smaller plot in Sector-14A. Ex. Ka-32 reads as under: Ext Ka-32 To, The Chairman NOIDA Madam, It is requested that earlier one plot of 450 sq. mts. was allotted to me in Sector 51. After this I had requested on 27.09.1994 for allotment of one small plot in Sector 14A in place of this plot. But I have been allotted plot in Sector 44, in place of Sector 14-A. The plot allotted in Sector 44 is not according to my requirement and I am not in position to pay the conversion charges which being levied. So, it is again requested that one small plot may be allotted to me only in Sector 14A. Yours faithfully Sd/- Rajiv Kumar Dy. Chief Executive Officer Noida Dated 15.10.1994 The above letter Ex. Ka-32 dated 15.10.1994 clearly shows that even as per the version of Appellant Rajiv Kumar, he was validly allotted a plot in Sector-44, for which conversion charges were also levi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/apartments under NOIDA have to be strictly in compliance with the terms laid down therein. 17. Of all the conditions relating to conversion policy, two conditions in the office order dated 03.02.1992 are most notable for our purpose. First, as contained in Clause 3, the rider of offering only cancelled and surrendered plots in conversion. Second, the restriction of allowing conversion only once, as contained in 3rd para after Clause 7. Clause 3 of the said office order dated 03.02.1992 reads as under: 3. In case of residential plots, only cancelled and surrendered properties shall be offered for conversion. However, this shall not be applicable for conversion of apartment/flat/house. The details of availability of properties shall be available in the office of Dy. Chief Executive Officer. A perusal of the above Clause shows that in case of residential plots, only cancelled and surrendered plots can be allotted in conversion to an allottee. It is also pertinent to note that being Dy. CEO of NOIDA, all the details of availability of properties were held with the Appellant Rajiv Kumar, enabling him to abuse his position to pick and manipulate any property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trial court's view affirmed by the High Court that there was only one conversion, may not be a correct view. It is pertinent to note that while referring to Ex. Ka-33, the trial court has itself pointed out that some portion of Ex. Ka-33 was torn and that the signature of Neera Yadav is marked by bracket with red pen. In this regard, there is no plausible explanation from the Accused as to how vital part of the document was torn. 21. As noticed earlier, Appellant Rajiv Kumar had sought allotment of a residential plot under Residential Plots Scheme, 1994 (III). Clause 12 of the said scheme provides that plots will have to be accepted by the allottee on As is where is basis i.e., it is not the prerogative of the allottee to bargain with respect to area, and location of the plots. In clear abuse of position, the said Clause and other Rules were flouted by the authorities in case of the Appellant Rajiv Kumar. After allotting him plot No. B-86 in Sector-51, Appellant Rajiv Kumar's allotment was converted to plot No. A-36 in Sector-44 and thereafter his request for the second conversion was immediately acceded to. 22. Conversion of guest house to res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sector-14A. This clearly manifests Appellant's dishonest intention in seeking allotment of a plot in a developed Sector i.e. in Sector-14A, at less price of ₹ 1200/- per sq.m. against higher premium of ₹ 4500/- per sq.m. in that Sector and also establishes lack of bona fide on the part of Appellant. 24. Every decision of the State or its agencies like NOIDA represented by its officers must be founded on strong and transparent ground. In the note put up for conversion of guest house to residential , no sound reasons were given. Plot No. 27 remained as guest house for quite a long time; while so, what was the necessity to give direction to convert the same as residential is nothing but to suit the convenience of the Appellant and to gain advantage to himself by getting a plot in the developed Sector. 25. Cuttings in Ex. Ka 16: In order to bring forth the illegality in the act of the Appellants and the hidden agenda behind such mala fide conversion of plot No. 27 from a guest house to a residential plot, the prosecution has relied upon paper No. Ka/23, which is a photocopy of proposal dated 28.05.1994 presented by PW-19 S.P. Gautam which is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true photo copy of Ex. A-16 signed by him and approved by CCEO on 31.05.1994 and that its photo-copy was obtained and kept by him even after his retirement in view of repeated re-organization of plots. Notably, during cross-examination of PW-21 Dev Dutt, it was never suggested to him that the copy of paper No. 23-A produced by him as true photo copy of original proposal Ex. A-16, is not the true copy of the original or has been fabricated in connivance with prosecution or otherwise. PW-21 has no animosity with the Appellants nor has it been suggested so to doubt the veracity of PW-21 Dev Dutt. In the light of his testimony, we find no merit in the arguments of the Appellants that prosecution has failed to prove that cuttings or interpolations in Ex. A-16 dated 28.05.1994 were subsequently made by PW-19 S.P. Gautam. 28. Most importantly, the expert evidence on record, proves it beyond doubt that the words and figures, which were hidden beneath the strong cuttings and overwritings were the words such as 'guest house', 're-organisation' etc. In light of the above evidence, it stands proved that the Appellants deliberately and malafidely manipulated the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 map ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide road in South. All these alterations in the site plan of Sector-14A reflect nothing but dishonest intention of the Appellants to gratify their private interest instead of public interest, which they were lawfully entrusted with to take care of. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast (P) Ltd. v. State of Maharashtra (2009) 10 SCC 388 this Court held: (SCC p. 399, para 39) 39. Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law.... 30. 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 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 sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 16.25 x 30 m. while on actual measurement of the site it has been found that a 3 M. wide extra length of land is available along the road. As per the discussions held in this regard the boundary wall of the plot No. 28 is being constructed with the dimension of plot as 16.25 x 30 m. as per shown 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Sector-14A. How high the premium amount of plots in Sector-14A was at that point of time could be ascertained from the fact that for the allotment of additional area of 105 sq.m. in plot No. 27 in Sector-14A as per the request of Appellant's wife, the Appellant himself had paid premium amount of ₹ 4,500/- per sq.m. 39. A copy of provisional allotment certificate 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 ₹ 5,40,000/- @ ₹ 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 @ ₹ 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 ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing but abuse of official position for obtaining valuable thing or pecuniary advantage. 41. Insofar as enhancement of the area of plot No. 27 in Sector-14A allotted to Appellant Rajiv Kumar, by 105 sq.m., it has come on record that the same is in grave violation and disregard of Rules of NOIDA. Clause 11 of 1994 (iii) Scheme states that the area of a plot allotted or handed over may vary from the size of the plots advertised in the scheme and 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in all the stages of conversion of the guest house to residential , in violation of Rules allotment of plot No. 27 to Appellant and also allotment of additional area to the Appellant Rajiv Kumar. Often conspiracy is hatched in secrecy and for proving this offence substantial direct evidence may not be possible to be obtained. The evidence and materials on record amply show that there was a prior concert of minds of the Appellants in conversion of the guest house into residential and allotting 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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