Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 150 OF 1997
NOIDA Entrepreneurs Association .....Petitioner
Versus
NOIDA & Ors. .....Respondents
J U D G M E N T
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 Development Authority
(hereinafter referred to as the `Authority’), has been constituted under
the said Act, 1976. The object of the Act had been that genuine and
deserving entrepreneurs may be provided industrial and residential
plots and other necessary amenities and facilities. Thus, in order to
carry out the aforesaid object, a new township came into existence.
All the activities in the Authority had to be regulated in strict
adherence to all the statutory provisions contained in relevant 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 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 following reliefs:
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“(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 writ and directions and
frame guidelines for allotment of lands by the
NOIDA.”
3. Dr. Rajeev Dhavan, learned senior counsel who had been
appearing for the petitioner in the matter was requested by this Court
vide order dated 29.8.1997 to act as Amicus Curiae.
The matter was heard several times by this Court and after
scrutinising of a very large number of documents, the Court was of
the opinion that the allegations made in the petition required
investigation. Thus, vide order dated 15.12.1997, 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. The said report was also placed before this Court in the first
week of January 1998. As the report indicated, prima facie view of the
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Commission, that Mrs. Neera Yadav, IAS, respondent no.7 had
committed serious irregularities and illegalities, a copy of the report of
the Commission was also directed to be given to her and this Court
vide order dated 6.1.1998 asked the State of U.P. as to whether this
report had been accepted by the State Government and, if so, what
was the likely follow up measure 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, considering the
fact that allegations of a very high magnitude and gravity had been
made against a large number of officials, this Court wanted the CBI to
investigate 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
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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 filed her affidavit with regard to irregularities
committed by other officers, namely, Shri P.K. Mishra, respondent
no.5; Shri Bijendra Sahay, 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
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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 Shri S.C. Tripathi are concerned, the State Government vide order
dated 18.7.1997 had referred the same to the Chairman of the Board
of Revenue for inquiry and the same was pending.
6. In the meanwhile, Shri Mahinder Singh Yadav, husband of
Mrs. Neera Yadav, IAS, respondent no.7 and one Shri Bali Ram, Ex.
Member of Parliament also filed complaints against the aforesaid
officials in 1996-1997, which were also referred to the Chairman,
Board of Revenue for inquiry.
7. One Shri Naresh Pratap Singh also 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.
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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, including as to why disciplinary proceedings had
been dropped by the State of U.P. against several officials who had
been impleaded as respondents in this case. The Commission
submitted the report dated 24.12.2005, and after considering the
same, this Court vide order dated 8.12.2008 closed the proceedings
against Shri Bijendra Sahay, respondent no.8. One Shri S.C. Tripathi
also stood exonerated in earlier proceedings.
In view of the order passed by this Court, the CBI
conducted the enquiry against Mrs. 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 1993-94, and as to whether the misconduct
is of such a grave nature that it warrants the criminal prosecution and
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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
criminal prosecution can easily be launched. The matter requires
investigation as to whether the said respondent no.4 had committed an
offence under the provisions of Prevention of Corruption Act, 1988
(hereinafter called the Act 1988).
11. Dr. Rajeev Dhavan, learned senior counsel/Amicus Curiae
would submit that the gravity of allegations made against the said
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respondent no.4 is of such a high magnitude that it warrants the same
treatment as given to Mrs. Neera Yadav, IAS, respondent no.7. Dr.
Dhavan has taken us through all the proceedings including the reports
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 Dwivedi, learned senior counsel appearing for
respondent no.4, has vehemently opposed the initiation of disciplinary
proceedings or criminal prosecution on the ground that the Authority
did not suffer any financial loss. There is nothing on record to show
that the said respondent indulged in corruption, thus, the provisions of
the Act 1988 were attracted. The said respondent had acted in good
faith. The disciplinary proceedings cannot be initiated, being time
barred. All the allegations had been 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
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the tune of Rs.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 cancelled and the
green area was restored by the respondent no.7 herself. The contract
given by the respondent no.4 to certain contractors had been at the
rate on which they had been working earlier. Thus, the Authority did
not suffer any loss whatsoever.
13. Before we proceed with the case on merits, we would like to
make it clear 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.
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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 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 initiation of criminal proceedings is concerned it is
governed by the provisions of Code of Criminal Procedure, 1973
(hereinafter referred to as Cr.P.C.). Section 468 thereof puts an
embargo on the court to take cognizance of an offence after expiry of
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limitation provided therein. However, there is no limitation
prescribed for an offence punishable with more than 3 years
imprisonment. Section 469 declares as to when the period of
limitation would start. Sections 470-471 provide for exclusion of
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 nullum tempus aut locus
occurrit regi (lapse of time is no bar to Crown in
proceeding against offenders)……. It is settled law
that a criminal offence is considered as a wrong
against the State and the Society even though it has
been committed against an individual. Normally,
in serious offences, prosecution is launched by the
State and a Court of Law has no power to throw
away prosecution solely on the ground of delay.
Mere delay in approaching a Court of Law would
not by itself afford a ground for 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.
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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
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
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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, Greater NOIDA
from 10.1.1994 to 26.1.1995. Altogether, there had been 14
allegations against him which the Chairman, Board of Revenue had
examined. The findings recorded by the Chairman, Board of Revenue
were also placed before Justice K.T. Thomas Commission. However,
at the time of arguments, Dr. Rajeev Dhavan, learned Amicus Curiae
has submitted that there are three major allegations 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 Rs.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
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process was not followed on account of urgency is not
acceptable. (para 1.4.3.2)
(ii) The award of the contract to M/s. Techno Construction
Co. was a pre-detemined decision. No satisfactory explanation
why this company only was selected. (para 1.4.3.3.)
(iii) The notes in the file for the award of the contract to M/s.
Anil Kumar & Co. in Sector Gamma were tailor made and the
urgency projected cannot be accepted. (para 1.4.3.4)
(iv) There was no urgency warranting the award of contract
to Mr. J.K. Jain, 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 appear to
be tailor made. The works were got done by the
Manager/Senior Manager through hand picked contractors
without inviting tenders and without following financial
norms. (para 1.4.4.)
Allegation No. (ix):
Shri Ravi Mathur caused financial loss to NOIDA by
not paying conversion charges with respect to the plot allotted
to him. He initially asked for conversion from Sector 35 to
Sector 27 but since he did not deposit the required amount the
offer of conversion was withdrawn. Subsequently he applied
for conversion from Sector 35 to Sector 44.
Findings:
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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 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
Engineer and the then General Manager (F) are responsible.
(para 1.13.7)
(iv) The Board has taken its duties casually and there was no
serious effort to check, analyse and advise. (para 1.13.7)
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21. So far as these allegations are concerned, it is evident from the
record that M/s Anil Kumar & Co. had been allotted originally the
work on the basis of tender for Rs. 2.75 crores in Sector `Gamma’ in
Greater NOIDA, in connection with the construction of water drains.
However, they had been awarded additional work by Shri Ravi
Mathur, IAS, respondent no. 4, worth Rs.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 Rs.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 prescribed in law. More so, there is nothing
on record to show as to whether the said contractor M/s Anil Kumar
& Co. was eligible to carry out the contract worth Rs.6.50 crores.
Awarding the contract under the garb of so-called extension, amounts
to doing something indirectly which may not be permissible to do
directly. Admittedly, such a course of action is not permissible in law.
22. It is a settled proposition of law that whatever is prohibited by
law to be done, cannot legally be affected by an indirect and
circuitous contrivance on the principle of “quando aliquid prohibetur,
1
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. & Ors., JT
(2010) 11 SC 273).
23. In Jagir Singh v. Ranbir Singh & Anr., AIR 1979 SC 381,
this Court has observed that an authority cannot be 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.
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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.”
26. In Zenit Mataplast Private Limited v. State of Maharashtra
& Ors., (2009) 10 SCC 388, this Court held :
“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 plot no.118, Sector-35 measuring 360 sq.
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meters which was converted to plot no.G-25, Sector-27 measuring
392 sq. meters. However, as the respondent no.4 did not deposit the
required charges the said order of conversion stood withdrawn. By
subsequent conversion, respondent no.4 got plot no.A-15 in Sector-44.
Thus, two conversions had been made on different dates. However,
he paid the transfer charges only once to the tune of Rs.1.80 lacs. It is
alleged that by first conversion, the respondent 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 plots, only cancelled and
surrendered properties shall be offered for
conversion………
The details of availability of properties shall
be available in the office of Dy. Chief Executive
Officer.
xx xx xx
xx xx xx
6. All expenses pertaining to conversion such as
conversion charges, locational benefit charges,
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stamp duty, registration charges etc. shall be borne
by the allottee.
xx xx xx
8. Conversion shall not be allowed 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.
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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 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 view
thereof, the New Okhla Industrial Development Area (Preparation and
Finalisation of Plan) Regulations 1991 (hereinafter called as
`Regulations 1991′) had been framed with the prior approval of the
State Government as required under Section 19 of the Act 1976 and,
therefore, have statutory force. By virtue of the provisions of sub-
section 2(b) of Section 6 of the Act 1976, it is a statutory requirement
that in the plan to be prepared by the NOIDA, it must necessarily
provide as to for what 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
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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. Section 14 of the Act
1976 clearly provides for cancellation of allotment and resumption/re-
entry, where the allotment had been made in contravention of the rules
and regulations. In case the Authority wants to change the user of the
land, condition precedent remains to amend the Master Plan.
33. There is nothing on record to show that any amendment had
ever been made either in the Master Plan or in the Regulations 1991
before the change of user of land, when a 13 hectare City Park
situated near 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 competent to do so without
seeking the amendments as mentioned hereinabove.
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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 impression of bias, favouritism and
nepotism. If a decision is taken without any principle or without any
rule, it is unpredictable and such a decision is antithesis to the
decision taken in accordance with the rule of law. The Public Trust
Doctrine is a part of the law of the land. The doctrine has grown from
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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.
Hassan Rawther v. Kerala Financial Corporation, AIR 1988 SC
157; Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors.,
AIR 1991 SC 537; and M.I. Builders Pvt. Ltd. v. Radhey Shyam
Sahu & Ors., AIR 1999 SC 2468).
35. 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
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faith” means “for legitimate reasons”. It must be exercised bona fide
for the purpose and for none other. (Vide: Commissioner of Police,
Bombay v. Gordhandas Bhanji, AIR 1952 SC 16; Sirsi
Municipality v. Ceceila Kom Francis Tellis, AIR 1973 SC 855; The
State of Punjab & Anr. v. Gurdial Singh & Ors., AIR 1980 SC
319; The Collector (Distt. Magistrate) Allahabad & Anr. v. Raja
Ram Jaiswal, AIR 1985 SC 1622; Delhi Administration (Now NCT
of Delhi) v. Manohar Lal, (2002) 7 SCC 222; and N.D. Jayal &
Anr. v. Union of India & Ors., AIR 2004 SC 867).
36. In view of the above, we are of the considered opinion that
these allegations being of a very serious nature and as alleged, the
respondent no.4 had passed orders in colourable exercise of power
favouring himself and certain contractors, require investigation. Thus,
in view of the above, we direct the CBI to have preliminary enquiry
and in case the allegations are found having some substance
warranting further proceeding with criminal prosecution, may proceed
in accordance with law.
It may be pertinent to mention that any observation made
herein against respondent no.4 would be treated necessary to decide
the present controversy. The CBI shall investigate the matter without
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being influenced by any observation made in this judgment.
The writ petition stands disposed of accordingly.
Before parting with the case, we would like to express
our gratitude and record appreciation to Dr. Rajeev Dhavan, learned
senior counsel for rendering commendable assistance to the Court as
Amicus Curiae.
…………………………J.
(G.S. SINGHVI)
………………………..J.
(Dr. B.S. CHAUHAN)
New Delhi,
May 9, 2011
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 529 OF 1998
Naresh Pratap Singh ..Petitioner
Versus
State of U.P. ..Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
In view of our judgment delivered today in Writ Petition
(C) No. 150 of 1997 (NOIDA Entrepreneurs Association v.
NOIDA & Ors.), no separate order is required in this writ petition
which is accordingly disposed of.
……………………..J.
(G.S. SINGHVI)
…………………….J.
(Dr. B.S. CHAUHAN)
New Delhi,
May 9, 2011
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