CRL.M.C./3616/2013 of VINOD MITTAL Vs CENTRAL BUREAU OF INVESTIGATION

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.M.C. 3616/2013 VINOD MITTAL

..... Petitioner

Through: Mr. Neeraj Kishan Kaul, Sr. Advocate with Mr. Vishal Gera & Ms. Sugandha Nayak, Advocates Advocate with Mr. Vishal Gera & Ms. Sugandha Nayak, Advocates

versus

CENTRAL BUREAU OF INVESTIGATION ..... Respondent Through: Mr. Narender Mann & Mr. Manoj Ohri, Special Public Prosecutors for CBI Through: Mr. Narender Mann & Mr. Manoj Ohri, Special Public Prosecutors for CBI

CORAM:HON'BLE MR. JUSTICE SUNIL GAUR O R R% 04.09.2013

Vide impugned order of 10[th] May, 2013, trial court has found prima face case for the offences under Section 120B I.P.C. read with Section 13(1)(d)(iii) read with Section 13(2) of Prevention of Corruption Act, 1988 and Section 420 I.P.C. against petitioner and his co-accused.

The factual matrix of this case as noticed by the trial court in the impugned order is as under:-

“The investigation revealed that A3 Vinod Mittal, Director of M/s Bhatinda Chemical Ltd., which owned land measuring 7 bigha in the above khasras malafidely did not intimate acquisition of the said land to the Competent Authority, to avoid the land having been declared surplus and acquired by the government. The

investigation also revealed that the M/s JMD Build Well Pvt. Ltd. M/s Vinman Developers Pvt. Ltd. through its directors Sh. Vinod Mittal and and Sh. Vinod Mittal in individual capacity bought land measuring 1364 sq. meters including 124.39 sq. meters built up area in property No.8 in Battery Lane, Civil Lines, Delhi by sale deed duly registered on 26.11.1996. A2 Sh. D.D.Mittal (since expired) had duly witnessed the sale deed. A4 Manoj Mittal was shown as the tenant in one of these properties and therefore A2 to A4 had knowledge that the companies in question had purchased the above land and therefore if purchase of this land had been informed to the Competent Authority, the Competent Authority would have not granted the NOC and the land would have been declared as excess land.”

In the impugned order, trial court while relying upon decision in Criminal Appeal No. 536/2002 Sukhram v. CBI, decided on 21[st]December, 2011 has concluded that for framing of charge under Section 13(1)(d)(iii) of Prevention of Corruption Act, 1988mens rea is not required.

Learned senior counsel for petitioner assails the impugned order by contending that the Apex Court in C.K.Jaffer Sharief v. State (Through CBI) (2013) 1 SCC 205 has reiterated in no uncertain terms that dishonest intention is the essence of criminal misconduct by public servant and in the instant case, there is no material on record to show that petitioner had attempted to bribe public servant-S.S.Rathore. So, it is contended on behalf of petitioner that petitioner cannot be prosecuted for the offence under Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988

with aid of Section 120-B of I.P.C. as the allegations of criminal conspiracy are lacking.

It was next contended that FIR in question was registered in pursuance of the directions issued by Division Bench of this Court in Public Interest Litigation titled as Girdhari Lal Tewari & Anr. v. Union of India & Ors. 2003 (70) DRJ 415 (DB) whereby CBI was called upon to make an inquiry regarding forgery and fabrication of documents pertaining to sale and purchase of land by Rati Ram and thereafter by 17 persons, who were the predecessors-in-interest of respondents No.5 to 10. Thus, the submission advanced by learned senior counsel for petitioner was that the impugned charge-sheet has not found any defect in title deed of the subject land but has gone beyond the scope of inquiry to allege the violation of Urban Land (Ceiling and Regulation) Act, 1976 which was beyond the purview of the directions issued by Division Bench in Girdhari Lal Tewari (supra).It was vehemently urged by learned senior counsel for petitioner that Urban Land (Ceiling and Regulation) Act, 1976 stood repealed in the year 1999 vide Urban Land (Ceiling and Regulation) Repeal Act, 1999which provides for abatement of legal proceedings and so for the alleged violation of the aforesaid Act, petitioner cannot be prosecuted in the FIR in question.

It was further contended on behalf of petitioner that prior approval of Central Government under Section 6A of Urban Land (Ceiling and Regulation) Act, 1976 is mandatory and there is violation of Section 6A of this Act so, the trial of this case cannot be proceeded with. Thus, quashing of impugned order and discharge of petitioner in this FIR is

Crl.M.C.No.3616/2013

sought while relying upon decisions in Ms. Mayawati v. Union of India & Ors. 2012 (8) SCC 106, Tej Pratap Singh v. Union of India 2009(9) AD Del 466, Maharao Sahib Shri Bhim Singhji Ors. v. Union of India 1981 (1) SCC 166, West Bengal Properties Ltd. & Anr. v. State of West Bengal & Ors. AIR 1994 Cal 82, CBI v. State of Rajasthan & Ors. JT 1996 (6) SC 313 Biswanath Patra v. Divisional Engineer (E) S and LP and StateAIR 2007 Cal 189, M/s Pepsico India Holdings (Pvt.) Ltd. and Anr. v. State of UP & Ors. 2011 (2) Crimes 250, Jeewan Kumar Raut & Anr. v. CBI 2009 (7) SCC 526, T.Barai v. Henry Ah Hoe & Anr. AIR 1983 SC 150, K.R.Purushothaman v. State of Kerala AIR 2006 SC 35, J.Alexander IAS v. Central Bureau of Investigation 2002(2) KCCR 1363, A.Subai v. State of Kerala 2009 (6) SCC 587, C.K.Jafer Sharief v. State (Through CBI) 2013 (11) SCC 206, S.Mohan v. Central Bureau of Investigation2008 (7) SCC 1, Rakesh Kapoor v. State of Himachal Pradesh 2012 (11) Scale 255, J.Jayalalitha v. State represented by Director of Vigilance & Anti Corruption 2002 (1) LW(Crl.) 37, L.K.Advani v. Central Bureau of Investigation 1997 Cri.L.J.2559 and Major S.K.Kale v. State of Maharashtra 1977 2 SCC 394.

Learned Special Public Prosecutors for respondent-Central Bureau of Investigation have supported the impugned order and have drawn attention of this Court to Notification No.228/8/89-AVD.II, dated 7[th]September, 1989 whereby approval has already been granted by the Central Government for conduct of inquiry or investigation for the offences under Prevention of Corruption Act, 1988 by virtue of powers conferred by Section 3 of Delhi Special Police Establishment Act, 1946. It was next submitted on behalf of respondent that repeal of Urban Land

(Ceiling and Regulation) Act, 1976 is of no avail as there is no prosecution of petitioner under the aforesaid Act. It is pointed out that under the aforesaid Act, demolition or stoppage of unauthorized construction is provided and no penal consequences follow, whereas in the instant matter petitioner in connivance with public servant-S.S.Rathore had obtained „No Objection Certificate‟ which attracts ingredients of criminal offence for which petitioner is being prosecuted and so it cannot be said that the criminal prosecution of petitioner for offence of cheating and for offence under Section 13(1)(d)(iii) of Prevention of Corruption Act, 1988 is barred by any provision of Urban Land (Ceiling and Regulation) Act, 1976.

Attention of this Court was drawn by learned Special Public Prosecutors to the relevant extracts of the charge-sheet (Annexure P-4) to point out that mutation of the subject land was made in the name of Rati Ram without verifying the correctness of the sale deed and even the transaction of sale and purchase by respondents No. 5 to 10 was vitiated by fraud, which was established on record as the mutation in favour of Rati Ram was made on 28[th] July, 1989, when he was already dead. Thus, it was urged that inquiry has been conducted by respondent in terms of the directions issued by Division Bench of this Court in Girdhari Lal Tewari (supra). It is also pointed out that what has been found in the investigation finds mention at pages 194 to 200 of the charge-sheet which prima facie warrants trial of petitioner for the offences in question. Thus, it is submitted that the impugned order does not suffer from any illegality or infirmity and this petition deserves outright rejection.

Upon hearing this matter at length and on perusal of the impugned

order, charge-sheet, material on record and the decisions cited, I am of the prima facie opinion that in the face of Notification of 7[th] September, 1989 issued by virtue of powers conferred of Section 3 of Delhi Special Police Establishment Act, 1946, the requirement of prior approval under Section 6A of the Delhi Special Police Establishment Act, 1946 stand dispensed with and so on this account trial of petitioner is not vitiated. Simply because Urban Land (Ceiling and Regulation) Act, 1976 stood repealed in the year 1999, it cannot forestall petitioner’s prosecution for the offence in question as the Urban Land (Ceiling and Regulation) Act, 1976 does not provide for any penal consequences for the alleged violation of the aforesaid enactment. Pertinently, petitioner is not being prosecuted under Urban Land (Ceiling and Regulation) Act, 1976.

No doubt dishonest intention is the essence of criminal misconduct by public servant but upon bare perusal of charge-sheet (Annexure P-4), I find that it would be pre-mature to jump to conclusion that there is no material on record on the basis of which it can be prima facie said that petitioner ought not to be tried for the offences in question. The relevant extract of the charge-sheet, which can be referred to with advantage, is as under:-

“It is obvious from above that the NOCs of it from competent authority was applied for by furnishing aforesaid false information and concealing of the true facts. Had it been informed that court case was pending on the above land, the then Competent Authority (CA) would not have given the NOCs in respect of the above land. authority was applied for by furnishing aforesaid false information and concealing of the true facts. Had it been informed that court case was pending on the above land, the then Competent Authority (CA) would not have given the NOCs in respect of the above land.

x x x x

Investigation further disclosed that in the sale deeds dated

5.4.1995 the land is shown as agricultural land but actually this was not an agricultural land as the same has been shown as Gross Residential in the Master Plan-1962 and MPD-2001.

x x x x

In view of aforegoing Sh S.S.Rathore, CA should have assessed the land from the commencement of ULCR Act, i.e. 17.2.1976, as this land was not agricultural and the khasra Girdawri enclosed with the statements of section 6(1) of Sh. D.D.Mittal etc. showed that this land was not used for agricultural purpose.

x x x x

Investigation has further disclosed that Sh. Rathore admitted the genuineness of these companies without any supported document of registration/incorporation. He issued common order for all persons and companies on common address and issued single notice to M/s Chavan Rishi Apptt. It shows that he had knowledge that these all persons are members of the same family. All the companies have been represented by sons of Sh. D.D.Mittal and Sh. Mittal himself as Director. Only Sh. D.D.Mittal appeared on behalf of all the companies and Smt. Nirmala Gupta, Advocate appeared/represented all of them. All these applications are filled in by the same person with same facts. Though Sec. 2(i) of the ULCR Act does include company in the definition of person and provision of the companies act also warrant each companies to be treated as separate person, yet the basic objective of the act was to prevent concentration of Urban property in the hands of few persons and speculation and profiteering therein. It is defeated when it had come to the knowledge of the CA that all companies are constructing Group Housing Society for profiteering.

It has also revealed that the NOC granted in the year 1995 to the builders of Chavan Rishi Apartment is illegal because the then competent authority should have seen as to whether the land was validly passed to the builders by the sellers. The Sec. 5(3) of the ULCR Act, 1976 provides that no person holding vacant land in excess of ceiling limit i.e. 500 Sq. Mtrs. in class city, as on the date of commencement of this act is allowed to transfer any such land or part thereof unless statement u/s 6 has been filed and notification u/s 10(1) has been published. In this case, no such statement has been found to have been filed by the sellers of this property i.e. Rampiari and Kanwal Singh. Also none of the declarants (Builders) had informed to the competent authority in their statement u/s 6(1) of ULCR Act that any litigation is pending with regard to this land and the NOC on this land had already been granted in the year 1991. In view of this background grant of NOCs for this land was apparently in pursuance of criminal conspiracy by abuse of official position by Shri Rathore.

x x x x

In view foregoing it is apparent that Sh. S S Rathore in conspiracy with S/Sh. D.D.Mittal, abused his official position and facilitated Sh. D.D.Mittal and his sons and their companies through their Directors to use the land for their own purpose and to take the pecuniary advantage of that land which would have been declared excess of the Ceiling limit. Also had Sh. Rathore passed order with regard to the above land the construction of apartments would have been avoided."

It would be indeed pre-mature for this Court to conclude at the threshold of the trial that prosecution of petitioner in pursuance to charge-

sheet (Annexure P-4) is beyond the scope of inquiry as contemplated by Division Bench of this Court in Girdhari Lal Tewari (supra). It would be pertinent to note that sanction/NOC granted by petitioner’s co-accused-S.S.Rathore stood cancelled in the year 1997, which speaks for itself. After having gone through the decisions cited, I am of the considered opinion that the decisions relied upon are of no avail of petitioner to seek discharge in this case.

Finding no palpable error in the impugned order this petition is dismissed while refraining to comment upon merits of this case, lest it may prejudice petitioner at trial.

SEPTEMBER 04, 2013

(SUNIL GAUR) JUDGE