TMI Blog2019 (9) TMI 1605X X X X Extracts X X X X X X X X Extracts X X X X ..... ite of this fact, officers of the EOW and officers of the ACB declined to entertain the complaint either by disputing facts and figures disclosed in the petition and/or by saying that initiating proceedings against the officials of the MHADA may amount to double jeopardy. It is nothing but shirking the responsibility and acting in defiance of provision of Penal Laws. Material on record equally indicates that the component of constructed area, which is to be surrendered to the MHADA, has been sold by the developers in the open market. Though this fact was within knowledge of the officers of the MHADA/Board, they turned nelsons eye, obviously for the reasons known to all. Thus, we are of the considered opinion that the complaint and material on record constitutes credible information, which prima-facie discloses commission of cognizable offences punishable under the Indian Penal Code and other penal laws - The P.C. Act is amended by Amendment Act 16 of 2018 so as to fill in the gaps in description and coverage of the offence of bribery so as to bring it in line with the current international practice and also to meet more effectively India's obligation under the U.N. Conventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under the Development Control Regulation 33(7)( DCR for short). The petitioner alleged, though this fact was well within the knowledge of officials of MHADA, as could be discerned from the correspondence, yet despite repeated reminders to take steps for effecting recovery of property which belongs to the State, nothing has been done and no action has been taken against the defaulting developers by such Public Officials (Public Servants) knowingly and/or intentionally who are duty bound not only to protect the interest of the State but also to discharge their duty honestly. The petitioner thus alleged that, willful acts of omission and commission on the part of the officials of the MHADA not only caused wrongful loss to the State but wrongful gain to the developers. On these broad allegations, the petitioner is seeking following reliefs : (a) that this Hon'ble Court be pleased to issue a Writ of Mandamus or any other Writ in the nature of Mandamus directing the Respondents to register FIR in respect of Complaint dated 1/6/2016 addressed by the Petitioner to the Deputy Commissioner of Police, EOW, Crime Branch, Mumbai which was forwarded by Deputy Commissioner of Police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using and Area Development Act came into force and in terms of its Chapter-VIII, work of repair and reconstruction of old cess buildings is continued to be carried out. The State having found the slow progress in redevelopment scheme of the dilapidated buildings amended the Development Control Regulations ( DCR for short), 1991 to encourage the redevelopment of the CESS buildings through private developer/owner/ landlord, with the participation of tenants/occupants under DCR-33(7). 4. In terms of provisions of DCR-33(7), Clause (4) of Appendix-III, the developer to whom the No-Objection Certificate (NOC) has been issued for redevelopment of the dilapidated building is required to surrender surplus built-up area, as per prescribed percentage provided in third schedule of the MHADA Act, 1976. 5. The validity of the Clause-(4) of Appendix-III of DCR, 1991 was challenged in petitions before this Court on the ground that the same provides for compulsory acquisition of part of property constructed by the petitioners on their own lands without authority of law and without providing for any adequate or reasonable compensation. These petitions were dismissed and the validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of MHADA, but alleged dishonest and intentional acts of commission and omission on their part causing and thus allowing the developer to appropriate, such surplus area for their benefit and gain. 9. The petitioner therefore sought the information under the Right to Information Act with regard to the action taken by the officials of MHADA and Board against these thirty-three defaulting developers and also sought information as to why action has not been taken against the remaining defaulting developers. The petitioner was not given the complete information as sought and therefore following terms : (a) civil proceedings adopted and initiated to recover the surplus constructed area which is not surrendered; (b) action against the officials of MHADA for causing wrongful loss to the MHADA worth ₹ 6,000 crores due to wrongful and deliberation inaction on their part. 10. The petition discloses, information supplied on 17th March, 2016 under the Right to Information Act that, the surplus area of 1,37,332.52 sq.mtrs is yet to be received from 379 project-holders/developers. It is also informed that since the developers of these projects did not surrender the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner sought information from the Additional Commissioner of Police, ACB under the Right to Information Act seeking details and progress in action, taken on his complaint. In response thereto, the Additional Superintendent of ACB, informed the petitioner on 26th July, 2016 that since the complainant is seeking action against Mr. Bhange and Mr. Zende, Chief Executive Officer of the Board and the Chief Officer of MHADA and other MHADA officials, the Bureau is seeking opinion of the Principal Secretary, Housing Department, Mantralaya, Mumbai. 14. On 15th November, 2017 Mr. Parag Shyam Manere, Deputy Commissioner of Police (1) EOW, Mumbai filed an affidavit-in-reply and maintained that, developers redeveloping cess buildings under DCR 33(7) and other related rules, are bound to surrender part of redeveloped property, in a set percentage, to MHADA before obtaining Occupation Certificate from Municipal Corporation of Greater Mumbai. In paragraph no.4, Mr. Manere stated as under ;- I say that a general scrutiny of the said complaint primarily suggested violation of provisions of Prevention of Corruption Act hence on 03.06.2016, Economic Offences Wing, Mumbai forwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igures of the area surrendered by the developers of MHADA, on the basis of the letters written by MHADA, without first verifying contents of it, which otherwise is also contrary to information supplied under Right to Information Act. 16. Thus, after hearing the respective counsel for the parties, following order was passed on 8th September 2018, :- 1. The petitioner has, in larger public interest, brought to the notice of this court that the Maharashtra Housing and Area Development Authority (MHADA) sanctions several development projects in the City of Mumbai. The statistics would reveal that though a no-objection certificate has been given by MHADA, unless that is given and issued, the Municipal Corporation of Greater Mumbai will not process the plans and issue further certificate, particularly the development permission. The development permission in the city of Mumbai is granted in the form of Intimation of Disapproval and Commencement Certificate, particularly known as IOD-CC. Therefore, a no-objection certificate of MHADA is a prerequisite of the IOCCC. This no-objection certificate does not come without attached conditions. One of the attached conditions is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en inquiry referred to above. 19. Before we proceed further, we think it appropriate to read and appreciate contents of ACB's letter dated 18.04.2018, addressed to the Additional Chief Secretary, Home Department whereby permission to conduct open inquiry was sought. In unnumbered para no. 5 of the said letter, Additional Commissioner of Police, ACB stated thus :- This statement of fact, discloses that, 272, project developers, have not surrendered constructed builtup area to MHADA in terms of the DCR 33(7); it caused loss of thousands of crores of Rupees to the State. The Additional Commissioner, ACB thus expressed doubt, over role of the officials of the MHADA, who in purported exercise of their power caused benefit to the developers. In the backdrop of these facts, he sought permission to conduct detail enquiry and action against the officials of the MHADA. 20. On 11th January, 2018, Mr. Ramchandra Kondiba Dhanawade, Deputy Secretary to the State, Housing Department, has filed reply-affidavit and attempted to shield MHADA officials, contending that surplus area required to be surrendered to the MHADA by developers is always at the completion of the proj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r this amount has been recovered or not ? And if not recovered why it has not been recovered and reasons for not recovering such huge amount. Neither the MHADA nor the State has placed on record particulars of the steps taken or efforts made by the MHADA officials to recover the same from this defaulting developers. It may be stated that the Deputy Secretary, Home Department in reply affidavit, has not made statement as to whether the State has taken any follow up with the officials of the MHADA to ensure and secure recovery of huge penalty amount. 23. Thus, the material placed on record by the respondents themselves, clearly shows, that for years together and atleast since 1991 neither officials of MHADA nor of the Board, have taken any steps to recover the penalty as levied (as referred to here-in-above) or to recover constructed area from such developers to whom permissions were granted for re-developing cess buildings. 24. The material on record has thus established following facts: (i) In terms of DCR 33(7) upto March 14, 2014 Board granted No Objection/permission for redevelopment of 1728 projects; (ii) Out of which, 379 developers have not surrendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ADA assumes character of property of the State, which the officials of the MHADA and the Board are/were to appropriate for the benefit of the State. But by willful omissions, these officials allowed and permitted the developers to appropriate, such surplus area, which was/is under their control and thereby caused huge loss to the State to the extent as stated hereinabove and caused unlawful gain to the developers. Therefore, component of constructed area to be surrendered by the developers to the MHADA, being property under their control, but who by their deliberate/intentional omissions failed to appropriate for the benefit of the State and thus, committed penal offences, besides knowingly disobeyed directions of law. Once the developer is granted permission to re-develop the cess buildings under DCR 33(7), officers of the MHADA, being public servants, were under statutory obligations to ensure recovery of constructed area, but in this case material on record clearly indicates that these officers knowingly and intentionally disobeyed the directions of law and such dis-obedience has caused loss to the State. Material on record equally indicates that the component of constructed are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case admit application of Section 17A but in terms of the proviso thereto, concerned authority (herein Home Department) has not conveyed its decision within permissible period. At-least, the State has not brought to our notice any such decision taken by the State pursuant to request of the Anti-Corruption Bureau. We therefore hold that the State and its agencies have consciously avoided to Register the FIR, against the concerned official of the MHADA, under the garb of enquiry, though information clearly disclosed commission of a cognizable offence. Thus, more stringent provisions are now in place. The P.C. Act is amended by Amendment Act 16 of 2018 so as to fill in the gaps in description and coverage of the offence of bribery so as to bring it in line with the current international practice and also to meet more effectively India's obligation under the U.N. Convention. The provision for previous approval is aimed at providing a safeguard to a public servant from vexatious prosecution for any bonafide omission or commission in the discharge of official duties. It is not a shield to protect officials who do not act bonafide but with ulterior motives. 30. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y filing a complaint before the Magistrate. 33. The case of Rashid Ahmed V. Municipal Board, Kairana, reported in AIR 1950 Supreme court 163 laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S. Rashid Son Vs. The Income Tax Investigation Commissioner AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, unless there are good grounds therefor , which indicated that alternative remedy would notoperate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances. 34. A specific and clear rule was laid down in State of U.P. vs. Mohd. Nooh reported in 1958 SCR 595 = AIR 1958 SC 86, as under : But this rule requiring the exhaustion of statutory remedies before the Writ will be granted is a rule of policy convenience and discretion rather than a rule of law and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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