Delhi High Court
Onkar Chand Prashar vs State on 17 November, 1993
Equivalent citations: 1993IVAD(DELHI)872, 53(1994)DLT240, 1994(28)DRJ39
JUDGMENT S.C. Jain, J.
(1) The facts giving rise to this petition are that the petitioner Mr. Onkar Chand Prashar was working as Tehsildar in Delhi Development Authority (D.D.A.) during the period of Emergency. The task entrusted to the petitioner along with Mr. K.K. Nayar, the then executive officer and others related to the shifting of the various people from urban areas of Delhi to resettlement colonies. Certain complaints were made against the petitioner, and the other co-accused and a case F.I.R. No. 96/76 under Sections 420,468,471 and 120B Indian Penal Code read with Section 34 and under Section 5(2) of the Prevention of Corruption Act was registered on the allegations that he along with the other co-accused persons entered into a conspiracy to earn money by illegal means by receiving false possession slips in the names of fictitious persons or in the names of persons who were not squatters on the Government land. The sanction for prosecution as required under Section 197 Cr.P.C. and Section 6[1][c] of the Prevention of Corruption Act was accorded by Mr. M.N. Buch, the then Vice Chairman of the D.D.A. on 12.1.1979.
(2) The petitioner challenged that sanction, as accorded by the Vice Chairman of D.D.A. by filing an application on 3.2.1987 before the Special Judge mentioning therein that the Vice Chairman of D.D.A. was not competent to accord sanction on 12.1 -1979 and that the proceedings are liable to be quashed on that ground alone.
(3) The application filed by the petitioner was rejected by the Special Judge vide his order dated 3.6.1987. Aggrieved by that order, the petitioner has filed this petition.
(4) According to the learned counsel for the petitioner, the permission to prosecute the petitioner was accorded by the Vice Chairman of D.D.A. on 12.1.1979, though in accordance with the provisions of the Delhi Development Authority (Salaries, Allowances and Conditions of Service) Regulations, 1961 vested in the Delhi Development Authority itself. The Vice Chairman, however, was delegated powers by the Delhi Development Authority vide official gazette notification No.2/36/73-MI dated 26thJuly,1979in terms of Sub-section [l] of Section 52 of the Delhi Development Act,1957. According to the learned counsel, the Vice Chairman, D.D.A. was not competent to accord permission and the delegation in his favor was only vide notification dated 26th July,1979 and the proceedings against the petitioner are not sustainable and are liable to bequashed.
(5) According to the learned counsel for the petitioner, the order passed by the learned Special Judge rejecting his plea of discharge is wrong and against the provisions of law. According to the learned counsel, the observations of the learned Special Judge that so far as the question of notification is concerned, there may be some prior delegation of powers in favor of the Vice Chairman, D.D.A. whereby the Vice Chairman. D.D.A. might have been authorised to accord sanction. However, no such notification was placed on record by the D.D.A. showing that on 12.1.1979 the Vice Chairman, D.D.A. was competent to accord sanction to prosecute this petitioner.
(6) As far as the legal proposition is concerned, sub section [1] of Section 52 of the Delhi Development Act,1957 empowers the Delhi Development Authority to delegate its powers as appointing and disciplinary authority in terms of the Delhi Development Authority (Salaries, Allowances and Conditions of Service) Regulations, 1961 for posts up to Class Ii to its Vice Chairman and for posts up to Class I to its Chairman and authorises them to act as such. As per the record, the delegation of powers in favor of the Vice Chairman was done vide the notification dated 26.7.1979, a copy of which is AnnexureP-2.
x) The prosecution has not placed on record any other notification nor my attention has been drawn to any other notification showing that on 12.1.1979 when the Vice Chairman, D.D.A. granted sanction to prosecute this petitioner, he was having a delegated power as appointing and disciplinary authority in terms of the D.D.A. (Salaries, Allowances and Conditions of Service) Regulations, 1961 for the posts up to Class II. Admittedly, this petitioner was holding a Class Ii post, being a Tehsildar. In view of this admitted case, the question which now arises is whether the granting of sanction by the Vice Chairman, D.D.A. when he was not having any delegated power as appointing and disciplinary authority in terms of the D.D.A. [Salaries, Allowances and Conditions of Service] is valid and whether the proceedings can continue against this petitioner in view of this fact. My answer is "No". The permission accorded by the Vice Chairman, D.D.A. on 12.1.1979 is apparently without jurisdiction and the same is not sustainable. The learned Special Judge while rejecting the plea of the petitioner has not acted legally, as a result of which miscarriage of justice has occurred. The delegation of powers is always made by the notification in the official gazette, as was done in this case in the official gazette dated 26.7.1979. The observation of the Special Judge that there might be other notification that may be produced by the prosecution in evidence cannot be said to be justified on the basis of the record. It was for the prosecution to collect all the notifications before submitting the challan. This presumption raised by the learned Special Judge is contrary to law, particularly, when the notification dated 26.7.1979 in this regard has been produced on file. There is nothing on.record to show and indicate that the Vice Chairman, D.D.A., who accorded sanction for prosecution on 12.1.1979 was having the delegated powers as appointing and disciplinary authority in terms of the D.D.A. [Salaries, Allowances and Conditions of Service] Regulations,1961 for the posts up to Class II on that date. It is for the first time the delegation of powers was notified in the official gazette on 26.7.1979. In view of this shortcoming in the prosecution case that the Vice Chairman, D.D.A. was not competent to grant sanction for the prosecution of the petitioner on 12.1.1979, the case against him must fail. It is not in dispute that for the-prosecution of this petitioner, who is a public servant under Section 5(12) of the Prevention of Corruption Act, a sanction for prosecution under Section 6[l][c]of the Prevention of Corruption Act is essential.
(8) In view of this invalid sanction, present proceedings against this petitioner cannot proceed as the learned Special Judge has not correctly appreciated the law and facts. I, therefore, accept this petition and set aside the impugned order passed by the learned Special Judge on 3.6.1987 by holding that for want of valid sanction the proceedings against this petitioner cannot continue and, therefore, they are quashed. Ordered accordingly.
(9) However, this order should not be understood to have debarred the D.D.A. from taking action against the petitioner on account of charges levied against him culminating in the impugned order, if permissible under the law. There is no order as to costs.