Delhi District Court
Cbi vs (1) Smt. Sheila Kaul on 30 August, 2016
1
IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL
JUDGE: CBI03 (PC ACT): DELHI
CC No.11/2015
RC No.48(A)/1996
CBI/ACB/ND
Under Section(s) : 120B r/w Sec.409 IPC and Sec.13(2) r/w
Sec.13(1)(d) and 13(1)(c) of Prevention of Corruption Act, 1988
and substantive offences u/S 409 IPC and 13(2) r/w Sec.13(1)
(d) and 13(1)(c) of Prevention of Corruption Act, 1988 and u/S
468 and 471 IPC.
CBI Vs (1) Smt. Sheila Kaul
w/o Late Sh.K.N.Kaul
Formerly Minister for Urban Affairs &
Employment, New Delhi
R/o Everest House, Opp. Pawan Cinema
G.T.Road, Ghaziabad (U.P.)
(Since expired)
(2) Rajan S. Lala
s/o Late Sh.S.K.Lala
r/o F01/V1, Lodhi Road Complex,
New Delhi.
(3) D.D.Arora
s/o Sh.Parmanand
r/o 107, Vigyan Vihar, Delhi
(Since expired)
(4) Surati Lal Yadav
s/o Sh.R.B.Yadav,
r/o 15/264, Lodhi Colony, New Delhi
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 1 of 227
2
Permanent r/o Ajaturpur, P.O Khaura,
Distt.Hardoi, U.P.
(Since expired)
(5) Asha Yadav
D/o Sh.S.L.Yadav
r/o 15/264, Lodhi Colony, New Delhi
Permanent r/o Ajaturpur, P.O Khaura,
Distt.Hardoi, U.P.
(6) Smt. Reshma Yadav
w/o Sh.S.L.Yadav
r/o 15/264, Lodhi Colony, New Delhi
Permanent r/o Ajaturpur, P.O Khaura,
Distt.Hardoi, U.P.
(Discharged vide order dated
31.03.2009)
(7) Virender Arora
S/o Sh.D.D.Arora
r/o 107, Vigyan Vihar, New Delhi.
(8) Smt.Gopi Lala
w/o Late Sh.S.K.Lala
r/o F1/V1, Lodhi Road Complex
New Delhi
(Since expired)
(9) Deepak Kumar Lala
s/o Sh.Rajan S.Lala
r/o F1/V1, Lodhi Road Complex
New Delhi
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 2 of 227
3
(Discharged vide order dated
31.03.2009)
(10) Sant Lal Yadav
s/o Sh. Khaderu
r/o J568, Mandir Marg, Kalibari, New Delhi
Permanent r/o Vill. Jagapur, P.O Faridpur,
Distt.Azamgarh, U.P.
(11) Ms.N.Lalitha
d/o Late Sh.Nippani Narsimha Rao
r/o B22/1092, Lodhi Colony, New Delhi.
(Since expired)
(12) Sanjeev Saluja
s/o Dr. Subhash Chand Saluja
r/o B42, Swasthya Vihar, Delhi92.
(13) Smt. Tara Chaudhary
w/o Late Sh.C.M.Chaudhary
r/o 7, Mahadev Road, New Delhi
(Proclaimed Offender)
Date of Institution : 06.06.1998
Judgment Reserved : 11.08.2016
Judgment Delivered : 30.08.2016
J U D G M E N T:
1.Brief facts as set out in the chargesheet are that the Hon'ble Supreme Court of India, vide order dated 14.02.96, passed during RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 3 of 227 4 the hearing of WP 585 of 1984 directed the CBI to enquire into the allegations of corruption and bribery in the matter of out of turn allotment of Govt. accommodation/shops etc., and if the allegations are substantiated then to register cases against the persons whom are prima facie found responsible. After the preliminary enquiries, case RC 48(A)/96DLI was registered in ACB branch of CBI, New Delhi on 16.06.1996 against Smt. Sheila Kaul and others on the allegation that Smt. Sheila Kaul while working as Union Minister in the Ministry of Urban Development (later on renamed as Ministry of Urban Affairs & Employment), New Delhi entered into a criminal conspiracy with her personal staff and others and by abusing her official position as the Union Minister for Urban Development(UDM) and as a public servant in her capacity as the custodian of Government shops/stalls, dishonestly allotted shops on economic licence fee basis with a view to cause pecuniary gain to the allottees and corresponding wrongful loss to the Govt in contravention of the rules/instructions governing such allotments without calling for any competitive tenders/applications from general public. Though investigation has revealed three distinct instances of criminal conspiracy as well as abuse of official position by Smt. Sheila Kaul and others during the period from October, 1991 to 1995. The instant case relates to the acts of criminal conspiracy, abuse of official position and breach of trust committed by the RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 4 of 227 5 accused persons during the period 1991 to 1994 as per details given hereunder:
Smt. Sheila Kaul(A1) remained posted as Union Minister for Urban Development, which Ministry was later on renamed as the Ministry of Urban Affairs& Employment, New Delhi, during the period from June 1991 to September 1995 and Sh. Rajan S. Lala(A
2) and Sh. D.D.Arora(A3) remained posted as her Addl. Private Secretaries and Sh. S.L.Yadav(A4) worked as her Astt. Private Secretary during the said period. The rest of the accused persons(A5 to A13) are private persons who in criminal conspiracy obtained undue pecuniary benefits.
2. Investigations have revealed that the accused persons A1 to A13(mentioned in column 1 of this chargesheet) entered into a criminal conspiracy during the period between October 1991 to November, 1994 with an object of dishonestly or fraudulently obtaining undue pecuniary advantage in the matter of allotment of shops on economic licence fee basis in contravention of the rules governing such allotments and in pursuance to the said criminal conspiracy Smt. Sheila Kaul by abusing her official position as the Minister for Urban Development and in this capacity as the custodian of the government shops, without any public interest, sanctioned allotments of seven shops during the period from October 1991 to October, 1992 without calling for any tenders or RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 5 of 227 6 applications from the general public in Lodhi Road complex Market causing undue pecuniary advantage to them and also dishonestly or fraudulently allowed the transfer of shops allotted to Ms. Asha Yadav(A5) and Smt. Gopi Lal (A8) in favour of Smt. Reshma Yadav(A6) W/o Sh. S.L.Yadav(A4) and Sh. Deepak Kuamr (A9) S/o SH. Rajan S. Lala(A2), respectively against the provisions of the rules with a view to ause undue pecuniary advantage to the family members of said Sh. S.L.Yadav and SH. Rajan S Lala during the year 1994. In furtherance of the said conspiracy A1 to A4 the accused public servants committed the offences of criminal breach of trust with an object of causing undue pecuniary advantage to their relations/private persons(A5 to A13) and dishonestly or fraudulently allowed A5 to A13 to convert for their own use, without any public interest, the Government shops entrusted to the Ministry of Urban Development.
3. Investigations have also revealed that as per para 2(a) of the manual of office procedure prepared by the Dte. of Estates regarding licences in respect of markets, all the vacancies arising in respect of shops/stalls were required to be filled up as a matter of rule by inviting open tenders from the public. A provision for reservation for 22.5% of the vacancies for Scheduled Castes was also made and applications were required to be invited from these communities in respect of reserved quota to whom allotments were RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 6 of 227 7 to be made by draw of lots on payment of such economic licence fee as may be decided by the Government. As per para2(b) of this manual all allotments were to be made on leave and licence basis and the allottees were required to pay full amount of security deposit equivalent to 6 month's licence fee and one month's advance licence fee, execute a licence deed and produce an affidavit giving the local as well as the permanent home address and recent passport size photograph attested by a Magistrate Ist class/Gazetted officer at the time of obtaining possession slip from the Dte. of Estates.
4. In 1979, office memorandum No. 17017/4/77W2, dt. 24.03.79 was issued by the then Ministry of Works & Housing vide which policy to be adopted for development, construction and management of shopping centres in various government colonies in Delhi was circulated. As per para 2(i)(a) of this O.M the construction of shopping centres was to be undertaken by the CPWD and thereafter the shops were to be sold by auction by the Land & Development Officer, after fixing minimum reserve price in consultation with the Finance Division. Para 3 of this O.M further states that this would be the general policy to be adopted in future for the disposal of shop exceptions may be made if the circumstances so warrant. There is no mention of any reservation of any kind in this O.M. RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 7 of 227 8
5. The manual office procedure regarding management of Central Govt. markets in Delhi/New Delhi was again revised upto 1.92 by the Directorate of Estates. As per para 3(a)(i), all vacancies were required to be filled, a rule, by inviting tenders from the public. Similar provision for reservation of 22.5% of the vacancies for scheduled caste candidates which was existing in the earlier manual of 1974 was also incorporated. Para 12 of this manual mentions that the Govt. may, for reasons to be recorded in writing, relax all or any of the of the provisions of the rules/instructions governing the policy of allotment of shops etc.
6. Investigations have also revealed that in pursuance to the said conspiracy Ms. Asha Yadav(A5) daughter of Sh. S.L.Yadav(A
4) submitted an application addressed to Smt. Sheila Kaul Dt. 24.09.91 requesting for allotment of shop in Lodhi Complex Market to her. This application was not diarised anywhere and Smt. Sheila Kaul(A5) dishonestly signed a typed order sanctioning allotment of a shop in some central locality to Ms. Asha Yadav with a view to cause undue pecuniary advantage to her. This note was sent to Lands Department on 26.11.91. It was pointed by Sh. R.Vishwanathan, Desk Officer(L) on 28.11.91 that shops under the control of L&DO are disposed of through public auction to the highest bidder and the allotments on licnece fee basis are always made by the Dte. of Estates and hence, the relevant paper may be RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 8 of 227 9 sent to Dte., of Estates for further necessary action. Sh. Mahesh Arora, Dy. Director(Market) in the Dte. of Estates(DOE) recorded his note on 12.12.91 that Land & Development Officer may be requested to place a shop at the disposal of DOE for implementing order of Urban Development Minister(UDM), shop No. 6, Lodhi Road Complex Market was transferred to DOE by L&DO on 18.12.91. Offer of allotment was issued on 09.01.92 and Ms. Asha Yadav submitted two passport size photographs which were attested by Sh. D.D.Arora(A3) alongwith affidavit, indemnity bond, licence deed and photocopies of rent receipt to the DD(M) vide letter dated 15.01.92 and the possession of shop was taken on 25.01.92 by Ms. Asha Yadav.
7. Investigations have further revealed that in furtherance of the said conspiracy Ms. Asha Yadav(A5) submitted another application dt. 01.02.92 to Smt. Sheila Kaul(A1) mentioning therein that due to unavoidable circumstances it would be difficult for her to manage the shop and that this shop may be transferred in the name of her her mother Smt. Reshma Yadav(A6). Although this application is dt. 01.02.92 but a note dt. 11.05.94 has been ordered on this application by Sh. Rajan S Lala(A2) to the effect that the request was for change of name within the family i.e from daughter to mother and it may be examined and put up for orders of UDM. There was no provision under the rules for such type of transfer.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 9 of 227
10
This request was processed by Sh. P.Bhardwaj, Asstt. Director(Market) on 02.06.94, who strongly opposed the request of Ms. Asha Yadav mentioning therein that this request ws not at all covered under the rules and it may be regretted. This note of Sh. P.Bhardwaj was approved by Director of EstatesII, Sh. S.Patnayak, Joint Secretary(HD), Sh. A.P.Sinha and Minister of State(UD), Sh. P.K.Thungon on 05.07.94. Thereafter the file was kept pending by Sh. Rajan S. Lal(A2) in the office of UDM till 27.09.94 when he recorded another note with a view to cause undue pecuniary advantage to Ms. Asha Yadav and Mrs. Reshma Yadav mentioning therein that there was a precedent when the shop has been transferred in relaxation of the market instructions and that the request may be examined in the light of the precedent sympathetically as desired by the UDM. The request was approved in utter violation of the rules by Smt. Sheila Kaul on 05.10.94 and a fresh offer of allotment in favour of Smt. Reshma Yadav was issued on 06.10.94 resulting in pecuniary advantage without any public interest to A6 and A4. Necessary documents were executed by Smt. Reshma Yadav, W/o Sh. S.L.Yadav and submitted to DOE on 11.10.94. On the same day this shop was shown to have been vacated by Kum. Asha Yadav and Sh. S.L.Yadav(A4) signed the vacation report in the CPWD office. Smt. Reshma Yadav issued an authority letter in favour of Sh. S.L.Yadav who collected the RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 10 of 227 11 authority slip for taking possession of shop no. 6 on her behalf. Sh. S.L.Yadav after obtaining the authority slip also took actual possession of the shop under his own signatures on 13.10.94. This time also the passport size photographs of Mrs. Reshma Yadav were attested by Sh. D.D.Arora(A3).
8. Investigations have further revealed that in furtherance of the said criminal conspiracy a handwritten application addressed to UDM by Smt. Gopi(A8), mother of Sh. Rajan S Lala requesting for allotment of shop at Lodhi Road Complex was forwarded to Smt. Sheila Kaul(A1) by Sh. Dilip Singh Bhuria, MP(LS) vide his DO letter dt. 19.12.91. The application of Smt. Gopi does not bear any date and she has also given false residential address in this application in connivance with Sh. Rajan S Lala(A2) and Smt. Sheila Kaul(A1). Although, she was residing with her son, Rajan S Lala at Lodhi Road complex, yet in her application residential address of B2, B/270, Janak Puri, N. Delhi had been mentioned. Smt. Sheila Kaul dishonesly or fraudulently sanctioned allotment of a shop to her on 25.11.91 with a view to cause undue pecuniary advantage without any public interest to A8 and A2. Sh. Rajan S Lala(A2) sent the papers to Director of Estates for implementing orders of the Minister. After receipt of orders of UDM in the office, L& DO intimated DOE that shop No. 7 to 12 at Lodhi Road Complex were available for allotment and returned the file to DOE on RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 11 of 227 12 06.01.92. Till this time no request from Smt. Gopi was there for allotment of a specific shop in Lodhi Road Complex Market to her. However, an application dated 06.01.92 was obtained from her and offer of allotment in respect of shop No. 12 LRC market was issued on 13.01.92 and all the requisite documents were deposited in the Dte. of Estates(DOE) by Sh. K.M.Motiramani vide forwarding letter cumauthorization signed by Smt. Gopi on 16.01.92. The licence deed dt. 21.01.92 executed by Smt. Gopi was witnessed by Smt. Asha Lala, W/o Sh. Rajan Lal. The indemnity bond was signed as wintess by Sh. K.M.Motiramani. The possession of shop no. 12 was taken on 24.01.92. In furtherance of the said conspiracy a letter dated 21.09.94 addressed to Director of Estates by Smt. Gopi Lala was submitted in the Dte. of Estates in which Smt. Gopi mentioned that she was an old lady of 71 years age suffering from Diabetes Mellitus and OsteoArthrities and due to her ill health, she was unable to work and hence Shop No. 12 may be transferred and regularized in the name of her grandson Deepak Kumar(A9) S/o Sh. Rajan S Lala. Simultaneously said Sh. Deepak Kumar(A9) procured a forged Matriculation certificate in order to show his date of birth and also that he had passed Matriculation in first division from B.P.K.Inter College, Balrampur Barethi, Allahabad during the year 1991. Investigation has revealed that this certificate is a forged certificate. The said request of Smt. Gopi was processed by Sh.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 12 of 227
13
G.B.Singh DD(M) vide his note dt. 22.09.94. He mentioned that there was no provision in the market instructions about such regularization and if any relief is to be granted to Smt. Gopi, it will have to be with the approval of UDM. Smt. Sheila Kaul with a view to show undue favour to Sh. Rajan S Lala approved the proposal on 26.09.94 and the file was retained by Sh. Rajan S Lala till 02.11.94 when he marked the file to DEI and DD(M) for implementing orders of UDM. A2 sent the file to the office only when his son was going to become major in the eyes of law as per the date of birth mentioned in the forged certificate and letter from the DOE was issued in favour of Sh. Deepak Kumar regularizing shop No. 12 in his name on 04.11.94 itself. Sh. Deepak Kumar's photographs were attested by Sh. N.L.Sharma, OSD to UDM on 04.11.94. Indemnity bond was witnessed by Ms. K.Vermani. His licence deed was also witnessed by Ms. Vermani and Smt. Sangita Chatterjee. Sh. Deepak Kumar in his affidavit has falsely stated about his permanent residential address as B2/B, 270, Janak Pur. Sh. Deepak Kumar forwarded all the required documents to Dte. of Estates vide forwarding letter dated 10.11.94 including photocopy of the above referred forged matriculation certificate duly attested by Ms. K. Vermani authorizing Sh K.M.Motiramani to accept the allotment on his behalf.
9. Investigations have further revealed that in furtherance of RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 13 of 227 14 the said conspiracy an application dt. 23.01.92 was received by Smt. Kaul(A1) directly from Sh. Virender Arora(A7) S/o Sh. D.D.Arora(A3) requesting for allotment of shop No. 11 in Lodhi Road Complex Market to him on the ground that he was an unemployed graduate. Smt. Sheila Kaul(A1) dishonestly or fraudulently as well as by abuse of her official position sanctioned allotment without any public interest in his favour on that very day. The application containing orders of Smt. Sheila Kaul was sent to DEII/DD(M) by Sh. Rajan S Lala (A2) for implementation of orders of UDM. There was no provison under the rules for making allotment in favour of any unemployed graduate and the allotment orders were made by the UDM with the object of causing undue pecuniary advantage to Sh. D.D.Arora through his son Sh. Virender Arora. Sh. Virender Arora(A7) in conspiracy with his father Sh. D.D.Arora(A3), UDM Smt. Sheila Kaul(A1) and Sh. Rajan S Lala (A2) had falsely stated in his application that he was unemployed graduate whereas he was holding the agency of Vidyut Metallics Ltd., manufacturers of blades and razors and as such he was gainfully selfemployed. Offer of allotment of shop No. 11 was issued to SH. Virender Arora on 10.02.92 which was collected from the office personally by Sh. Virender Arora. He submitted all the required documents for obtaining occupation slip from DOE vide his forwarding letter dt. 11.02.92. The photographs of Sh. Virender RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 14 of 227 15 Arora were attested by Sh. Rajan S Lala. Sh. Lala also signed the licence deed as one of the witnesses alongwith the indemnity bond executed by Sh. Virender Arora. The affidavit executed by Sh. Virender Arora was witnessed for the purpose of his identification by Sh. D.D.Arora. Possession of the shop was taken by Sh. Virender Arora on 14.02.92.
10. In furtherance of the said conspiracy Sant Lal Yadva(A10) brother in law of Sh. Gopinath Yadav who was working as a domestic help at the residence of Smt. Sheila Kaul submitted an application dt. 08.01.92 to Smt. Sheila Kaul, UDM requesting for allotment of a shop in Gole Market/BKS Marg or Lodhi Complex on the ground that he was a handicapped person wihtout any means of livelihood. This application was received directly by Smt. Sheila Kaul who dishonestly or fraudulently, without any public interest and with the object of causing undue pecuniary benefit to one of the relations of her domestic help, ordered that a shop in any of the areas requested by Sh. Sant Lal Yadav be allotted in relaxation of policy orders dt. 24.03.79. This order was passed on 28.02.92 and Sh. Rajan S Lala(A2) marked the paper to DEII for implementation of orders. L&DO transferred shop Nos. 7 to 10 to DOE vide letter dt. 12.10.92 for allotment in favour of Sh. Sant Lal Yadav(A10) as well as Kum. N.Lalitha(A11), Sh. Sanjeev Saluja(A12) and Smt. Tara Chaudhary(A13) who had also been RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 15 of 227 16 similarly conferred undue pecuniary advantage by Smt. Sheila Kaul(A1) by allotting shops as per details mentioned in succeding paras. Offer of allotment was issued on 19.10.92 in favour of Sh. Sant Lal Yadav. The indemnity bond of Sh. Sant Lal Yadav was signed by Sh. Gopinath Yadav as witness giving address as 9, Moti Lal Nehru Marg i.e official residence of Smt. Sheila Kaul(A1). The photographs of Sh. Sant Lal Yadav were attested by Sh. N.L.Sharma, Ist PA to UDM on 29.10.92. The licence deed was witnessed by Sh. NLV Rao and Sh. Gopinath Yadav and possession of the shop was taken by Sh. Sant Lal Yadav in Nov. 1992.
11. Investigations have further revealed that a letter dt. Nil. addressed to UDM by Smt. N.S.Devi, mother of Kum. N Lalitha(A
11), a handicapped girl for allotment of a shop in Lodhi Road Complex Market in favour of her handicapped daughter Kum. N.Lalitha was received by Smt. Sheila Kaul on 20.03.92. Smt. Sheila Kaul(A1) dishonestly or fraudulently as well as by abuse of her official position and without any public interest with a view to cause undue pecuniary benefit to the family member of her personal staff Sh. N.V.L.Rao ordered on this application that a shop in LRC Market be allotted from handicapped category. There was no quota fixed for handicapped persons under the rules. When orders of UDM were received in the office for implementation, a RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 16 of 227 17 note dt. 29.10.92 was initiated by Sh. Mahesh Arora, DD mentioning therien that UDM had allotted shop from handicapped category on the application of Mrs. N.S.Devi, who was not handicapped. It was her daughter who was handicapped and in view of this file may again be submitted to UDM for seeking confirmation regarding this allotment. On this note, Smt. Sheila Kaul ordered that a shop be allotted to Kum. N, Lalitha(A11), who is handicapped. This note was sent to DD(M) by Sh. Rajan S Lala(A2) on 06.11.92. Offer of allotment of shop No. 10 LRCI was issued in favour of Kum. N. Lalitha and necessary documents including licence deed, indemnity bond, affidavit etc., were submitted in the office of DOE vide forwarding letter dt. 25.11.92 and occupation slip was issued on 02.12.92 when the possession was taken by Smt. N.S.Devi on behalf of Kum N. Lalitha.
12. Investigations have further revealed that in furtherance of the said criminal conspiracy an application dt. 12.10.92 was submitted to the Secretary(UD) by Sh. Sanjeev Saluja(A12) mentioning therein that he had applied for allotment of a shop in Lodhi Road Complex Market sometimes during FebMarch 1992 and that he was an unemployed graduate and was in dire necessity for a place to run appropriate business. From the records available in the file relating to allotment of shop No. 7 LRCI Market to Sanjeev Saluja, it appears that original application of Sh. Sanjeev RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 17 of 227 18 Saluja was not available in the file on which orders had been made by Smt. Sheila Kaul allotting a shop in his favour. Mrs. Tara Devi Choudhary(A13), wife of late C.M.Choudhary, MP had also submitted an application to Sh. M.Arunachalam on which Sh. Arunachalam had passed his orders that a shop in Lodhi Road Complex be allotted to Mrs. Tara Choudhary. The copies of notesheet placed in the file of Sh. Sanjeev Saluja show that Sh. Mahesh Arora DD had pointed out in his note dt. 14.10.92 that allotment of shops on ad hoc basis can be made with the approval of UDM and not by MOS. This note was forwarded to Joint Secretary(EH) by the then DEII Sh. Harcharanjit Singh on 14.10.92. UDM approved the proposal of allotment of shops to Sh. Sant Lal Yadav, Smt. Tara Devi Choudhary, Smt. N.S.Devi(in whose case the orders were later on obtained in favour of Kum. N.Lalitha) and Sh. Sanjeev Saluja. Since papers relating to allotment of shop in favour of Sh. Sanjeev Saluja were not available, therefore, DEII sought confirmation from office of UDM regarding approval of UDM Smt. Sheila Kaul for allotment of a shop to Sh. Sanjeev Saluja vide note dt. 17.10.92. Sh. Rajan S Lala recorded his note on the same day confirming the fact that as per computer records UDM had approved allotment of a shop to Mr. Sanjeev Saluja. An extract of computer print out was also sent to DOE by Sh. Rajan S Lal on 19.10.92 confirming allotment of a shop RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 18 of 227 19 to Sh. Sanjeev Saluja. Investigation has revealed that Sh. Sanjeev Saluja was residing in flat No. CII/23, Tilak Marg with his parents. This government flat was allotted to his mother Dr. Chanchal Saluja, who was at that time posted as CMOcumIncharge of CGHS Dispensary Pandara Road New Delhi. Dr. Subhash Chandra Saluja, father of Sh. Sanjeev Saluja, is also a well known plastic surgeon. Offer of allotment was issued to Sh. Sanjeev Saluja on 19.10.92 and requisite documents for obtaining possession of the shop were submitted in the office of DD(M) on 20.10.92. The shop No. 7, LRC I was occupied by Sh. Sanjeev Saluja on 21.10.92. The allotment had also been made by Smt Sheila Kaul in pursuance of the said conspiracy with a view to cause undue pecuniary advantage without any public interest to Sh. Sanjeev Saluja who was the son of a well todo doctor couple.
13. Investigations have further revealed that the then Director of Estates Smt. Kiran Chadha recorded a detailed note on 13.03.92 in part file attached to the file relating to allotment of shop No. 9, LRCI to Smt. Tara Choudhary wherein she pointed out that proposed allotment to Smt. Tara Choudhary was not covered under the policy and unless the policy instructions were followed strictly, not only the government will be put to loss by not recovering the auctioned cost in one lumpsum as against recovery of a small licence fee every month, it will make the management of the market RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 19 of 227 20 subsequently cumbersome and complicated. She further pointed out that in order to take the shelter of para 3 of policy instructions dt. 24.03.79, there should be sufficient and convicting justification of a case being of an exceptional nature to justify departure from the norm. The reasons like employment in graduates with dependants and window having to support a family after the death of the husband 12 years earlier, etc., may therefore have to be judged in this context. For any such exceptions, it would be appropriate to obtain UDM's approval as there is every likelihood of these exceptions being discussed on the floor of the house on one pretext or the other. This note is dt. 13.03.92 on which JS(H) Sh. PSA Sundaram has recorded that his aspect was discussed with Additional Secretary(UD) earlier and it was suggested that the practice of transferring shop under L&DO to DOE for allotment on rental basis should stop. Subsequently Smt. Sheila Kaul(A1) approved allotment of shop to Smt. Tara Devi Choudhary(A13), Smt. Sant Lal Yadav(A10) and Km.N.Lalitha(A11) with a view to cause undue pecuniary benefit without any public interest to them vide her order dated 18.06.92 at page 15/N of File No. J.13011/5/91 LD. Offer of allotment of shop No. 9, LRCI in favour of Smt. Tara Choudhary was issued on 19.10.92. The requisite documents were deposited in the office of DOE by Mrs. Tara Choudhary on 23.11.92 when the possession letter was issued in her favour.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 20 of 227
21
14. There was no public notice or advertisement inviting applications from eligible persons and the allottees from whom applications were received belonged to a very limited circle centering around Smt. Sheila Kaul and her personal staff. These applications were received directly in the office of Smt. Sheila Kaul and there was no verification of antecedents of the applicants and the claims made by them in their application. Smt. Sheila Kaul ordered allotments without the applications being processed by the office by following the normal procedure and allotments were ordered without verifying the eligibility of the applicants. None of the allottees to allotment of shops on economical licence fee basis and they knowingly obtained this undue favour in conspiracy with Smt. Sheila Kaul and others.
15. Investigations have further revealed that tenders were invited from the public for the allotment of 7 shops in question pursuant to the orders of Hon'ble Superme Court and these tenders were opened on 24.02.1997 and the highest rates quoted for these shop numbers 6 to 12 Rs. 9410/, 12,100/, 8000/, 16550, 10,893, 12,270 and 12,100/ respectively as against economic licence fee of about Rs. 654/ p.m charged from the allottees of the shops in question which clearly shows that huge undue pecuniary advantage was shown to the coaccused allottees by the accused public servants and corresponding wrongful pecuniary loss has been RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 21 of 227 22 caused to the public exchequer.
16. By the aforesaid acts the accused public servant abused their official position and caused undue pecuniary advantage in pursuance of the said criminal conspiracy to themselves/others and such acts were without any public interest. By the aforesaid acts Smt. Sheila Kaul(A1), Sh. Rajaj S Lala(A2), Sh. D.D.Arora(A3), Sh. S.L.Yadav(A4), Ms. Asha Yadav(A5), Smt. Reshma Yadav(A
6), Sh. Virender Arora(A7), Smt. Gopi Lala(A8), Sh. Deepak Kumar Lala(A9), Sh. Sant Lal Yadav(A10), Km.N.Lalitha(A11), Sh. Sanjeev Saluja(A12) and Smt. Tara Choudhary(A13) committed offences punishable u/s 120B r/w 409 IPC and Section 13(2) r/w Section 13(1)(d) and 13(1)(c) of the Prevention of Corruption Act, 1988. Smt. Sheila Kaul(A1) also committed substantive offences u/s 409 IPC and 13(2) r/w 13(1)(d) & 13(1)(c) of PC Act 1988. Sh. Deepak Kumar(A9) also committed substantive offences u/s 468 r/w 471 IPC.
17. Smt. Sheila Kaul, Sh. P.K.Thungon, Sh. D.D.Arora and Sh. S.L.Yadav are no more public servants, However, sanctions for their prosecution u/s 197 Cr.PC have been obtained from the competent authorities which are enclosed in original. Sanction for prosecution of Sh. Rajan S Lala u/s 19 of PC Act 1988 and u/s 197 Cr.PC has been obtained which is also enclosed in original for enabling this Hon'ble court to take cognizance of the offences RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 22 of 227 23 against the accused persons. None of the accused persons have been arrested in this case.
18. After the completion of investigations, above chargesheet was filed on 06.06.98 in the Court of the then Ld. Special Judge. Vide order dated 02.07.98 cognizance of the offence(s) was taken against the accused persons and summons were issued to them. Thereafter, matter kept on pending for scrutiny of documents and other miscellaneous purpose and ultimately vide detailed order dated 31.03.09, it was found that there was sufficient material on the record to presume the commission of offence(s) punishable u/S 120B r/w Sec.409 IPC and 13(2) r/w Sec.13(1)(c) and 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act) against A1 to A13 except A6 and A9, who were discharged and it was also observed that there was sufficient material on record to presume the commission of offence(s) punishable u/S 409 IPC and Section 13(2) r/w Sec.13(1)(c) and 13(1)(d) of PC Act r/w Sec.120B IPC against A1. Vide formal order on charge dated 02.04.09, charge(s) as per the said detailed order were framed against the accused A1, A2, A4, A5, A7, A10 and A12, to which they pleaded not guilty and claimed trial.
19. Before that, A3, A4, A8 and A11 had died, whereas A 13 was declared as Proclaimed Offender. Later on, during the trial A1 also expired and vide order dated 17.08.15 the proceedings RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 23 of 227 24 against A1 also stood abated.
20. Thereafter, prosecution in support of its case, has examined 45 witnesses.
21. PW1 is Sh.Rajeev Nayan Sharma, then Dy.Director, Ministry of Finance. He had delivered one file of Land's Division of Ministry of Urban Affairs and Employment in the CBI office to IO Mr.P.C.Sharma, which he seized vide memo Ex.PW1/1 (D21) and the relevant file is MarkX (colly.) (D22).
22. PW2 is Sh.R.D.Sahay, who was posted as Dy.Director of Estates (Policy) in the year 1996 in the Directorate of Estates, Nirman Bhawan, under the Ministry of Urban Affairs. He has deposed that he had handed over 53 files pertaining to allotment of shops / stalls in different markets located in Delhi to CBI. The relevant seizure memo is Ex.PW2/1 (D34).
23. PW3 is Sh.A.K.Pushkarna. He is a formal witness. He had signed as an attesting witness of Licence Deed in favour of Ms.N.Lalitha with regard to licence of shop no.10, Lodhi Road Complex. The relevant license deed is Ex.PW2/A (sic).
24. PW4 is Sh.K.D.Singh, who was working as Desk Officer in Internal Finance Division (IFD), Ministry of Urban Development (hereinafter referred to as UD Ministry), Nirman Bhawan, New Delhi. He has proved the seizure memo Ex.PW4/A (D23) vide which he had handed over the file as per details mentioned therein.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 24 of 227
25
He also handed over photocopy of attested copies of comparitive statement (D20) in respect of tenders called for various shops/ stalls of the Directorate of Estates which was opened on 24.02.97 containing his signatures at point A. He also deposed that he had handed over the photocopy of the attested copies of Manual of Office Procedure regarding licences in respect of markets, Office Memorandum No.17017/4/77W2 dated 24.03.79 and also Manual of Office Procedure regarding management of Central Government Market in Delhi / New Delhi revised upto 01.02.92 of Directorate of Estates which are on record as D11, D12 and D13 respectively. He had attested these documents and handed over to the IO of this case which are kept in CC no.15/11 (chargesheet no.III) and his signatures for attesting the same alongwith official stamp are at point A on all the documents and are Ex.PW4/B1, Ex.PW4/B2 and Ex.PW4/B3. He also proved the file mentioned in seizure memo Ex.PW1/A which was handed over to the IO, which file is Mark PW4/2.
25. PW5 is Sh.N.V.L. Rao, he is a formal witness, who had also signed as an attesting witness on the licence deed executed by Sant Lal Yadav (accused) which is Ex.PW5/A.
26. PW6 is Sh.Vijay Kumar Paul, who was posted as Assistant in the Directorate of Estates, Ministry of UD in the year 1992. He after seeing the counterfoil of the authority slips (D33), RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 25 of 227 26 stated that these authority slips were prepared for taking possession of the shops from the J.E, CPWD. The said counterfoils are Ex.PW6/A and Ex.PW6/B.
27. PW7 is Dr.Jai Prakash. He has deposed that he was working in CGHS Dispensary, Nirman Bhawan from 1992 to 1995. At that time Dr.Kamlesh Jolly was Incharge of the dispensary and Dr.Jolly's sister Smt. Chanchal Saluja was also a doctor in CGHS. He has stated that the licence deed executed by accused Sanjeev Saluja had been witnessed by him as well as Dr.Kamlesh Jolly and same is Ex.PW7/A, which also bears his signatures and they had also attested the photographs of accused Sanjeev Saluja vide Ex.PW7/B and Ex.PW7/C and he had witnessed the licence deed and attested the photographs of accused Sanjeev Saluja on the request of Dr. Kamlesh Jolly and accused Sanjeev Saluja.
28. PW8 is R.R.Dhasmana, who was working as Assistant Professor in India Meteorological Department. He had also attested licence deed pertaining to Asha Yadav (accused), which is Ex.PW8/A.
29. PW9 is Sh.Hukam Chand, he is also a formal witness who had attested the licence deed as another witness of accused Asha Yadav which is Ex.PW8/A.
30. PW10 is Sh.Ram Ashray Singh. He has deposed that he knew accused S.L.Yadav (now died) and accused Asha Yadav, his RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 26 of 227 27 daughter. He was shown the file Ex.PW2/2 (D1) relating to allotment of shop. After having a look at the file, he stated that the same contains two photographs of accused Asha Yadav which is Ex.PW10/1 and Ex.PW10/2, the file Ex.PW2/2 also contains three photographs of Smt.Reshma Yadav, w/o S.L.Yadav, which are Ex.PW10/3 to Ex.PW10/5. The file also contains indemnity bond which is Ex.PW10/6 which bears his signatures as attesting witness. However, with regard to his remaining testimony he became hostile and was cross examined by Ld.PP for CBI.
31. PW11 is Ms. Gayatri, who was working as Additional Secretary, U.P Board, Regional Office, Allahabad. However, her testimony is not relevant for the fact in issue, therefore the same has not been discussed.
32. PW12 is Pradeep Kumar, who has deposed that during the time when accused Sheila Kaul ( since expired ) was the Minister he was posted in the Personal Section of the Minister and was assigned the duty of attending the telephone calls of Sh.D.D.Arora as well as the Minister and he also used to type requests for appointment and engagements. After seeing the document (D15) seizure memo he identified the signatures of Sh.D.D.Arora on the same, which is Ex.PW12/A. He was also shown another seizure memo (D14) on which also he identified the signatures of Sh.D.D.Arora which is RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 27 of 227 28 Ex.PW12/B. He was also shown affidavits bearing the signatures of D.D.Arora which are Ex.PW12/C and Ex.PW12/D.
33. PW13 is Sh.B.M.Bajaj, who was Accounts Consultant. He has proved the document Ex.PW12/B (D14) bearing his signatures at point B and he stated that he was not aware of the documents mentioned in the said memo, but he used to prepare accounts of M/s V.K.Enterprises of which Virender Arora was the proprietor and vide seizure memo Ex.PW12/B, documents were handed over to the CBI.
34. PW14 is Sh.G.V.Krishna Rau, who at the relevant time was working as Land & Development Officer in the Ministry of UD, Nirman Bhawan, New Delhi. He after seeing the file (D22) stated that it contains his note dated 20.04.92 which was submitted by him as Land & Development Officer which was marked to Dy.Secretary (Lands). This relates to issue of disposal of shops, stalls etc. constructed in the government colonies by L&DO, explaining the background and the reasons for non disposal of the same and the need for the reservation of reserve price and requesting the Ministry to take a clear policy view regarding disposal of these shops and stalls. The note is Ex.PW14/A (D22) bearing his signatures. The copy of the same note was also placed in the file (D10) and same is Ex.PW14/A1.
35. PW15 is Dr. Chanchal Saluja, who is the mother of one of RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 28 of 227 29 the accused Sanjeev Saluja, who has stated that she was working as doctor in CGHS dispensary, Pandara road, her son was unemployed Graduate, therefore he applied for allotment of shop to the Secretary, UD in the month of January/February 1992, she after seeing the file (D6) stated that it contains a letter which is a reminder Ex.PW15/A. The shop no.7, Lodhi Road ComplexI, was alloted to her son and in token of the receipt of said allotment letter, he put signatures on the same which is Ex.PW15/B, thereafter he submitted the documents and his acceptance with regard to the above shop by annexing licence deed, indemnity bond, affidavit, photocopy of school leaving certificate and two passport size photographs duly attested bearing his signatures, and the communication is Ex.PW15/C. She also submitted that the licence deed executed by her son is Ex.PW7/A which bears her son's as well as her real sister Kamlesh Jolly's signatures. The indemnity bond exhibited by her son is Ex.PW15/D bearing his signatures and affidavit and undertaking furnished by him are Ex.PW15/E and Ex.PW15/F respectively. The CBSE Certificate and the certificate issued by the school where he studied, attested by Dr.Kamlesh Jolly are Ex.PW15/G1 and Ex.PW15/G2. The occupation certificate regarding the possession of shop is Ex.PW15/H.
36. PW16 is Sh.K.K.Malhotra, who was posted at the relevant RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 29 of 227 30 time as a personal staff of A1 (since deceased) then Minister UDM. A2 was working as Addl.Private Secretary to A1 and A3 (deceased) was also working as Addl. Private Secretary to A1, A4 (deceased) was working as Assistant Private Secretary to A1. The said witness after seeing the file (D3) (Ex.PW2/4 ) stated that the same contains the licence deed bearing his signatures at point A, that of accused Rajan S.Lala at point B, the said licence deed is Ex.PW16/A, he witnessed the said licence deed at the request of accused D.D.Arora (since expired) with regard to his son Virender Arora (accused).
37. PW17 is Sanjeeta Chatterjee, she has stated that one licence deed Ex.PW17/A was witnessed by her at the request of Sr.Officer in the Ministry of UD, bearing her signatures.
38. PW18 is Kamlesh Virmani, she had also witnessed the licence deed Ex.PW17/A pertaining to Deepak Kumar, who is the son of accused Rajan S.Lala. She also stated that the indemnity bond submitted by the said person also bears her signatures which is Ex.PW18/A and she had also attested the marksheet of Deepak Kumar which is Ex.PW18/B and she had also witnessed the indemnity bond of the said person and licence deed as well as photographs, the photographs are Ex.PW18/C1 and Ex.PW18/C2.
39. PW19 is Sh.Vinod Kumar Saxena, who was working as J.E in CPWD at the relevant time. He after seeing the file (D1) RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 30 of 227 31 Ex.PW2/2 stated that same contains vacation report with respect to shop no.6, Lodhi Road ComplexI, which had been vacated by the allottee on 11.10.94 which bears his signatures, same is Ex.PW19/A. He further submitted that the said file also contains the occupation report with respect to the same shop which was given on 13.10.94 bearing his signatures, same is Ex.PW19/B.
40. PW20 is Sh.V.C.Tewari, who was posted as Director of EstatesII, Ministry of UD, Nirman Bhawan. He after seeing the seizure memo (D31), submitted that the same bears his signatures which is Ex.PW20/A vide which he handed over the personal file of D.D.Arora, the said file contains certain notesheet and correspondence, file is collectively exhibited as Ex.PW20/B (colly.) and the notesheets are Ex.PW20/N1 to Ex.PW20/N26 and the correspondence sheets are Ex.PW20/C1 to Ex.PW20/C61.
41. PW21 is Sh.K.Nageswara Rao, who has deposed that at the relevant time he was working as Assistant Private secretary to Sh.M.Arunachalam, Minister of State, Ministry of UD. He after seeing the file (D7) Ex.PW2/A, stated that same contains the licence deed executed by Tara Chaudhary, which was witnessed by him, the said licence deed is Ex.PW21/A.
42. PW22 is Sh.R.C.Yadav. He deposed that he was working in CPWD at the relevant time and he knew S.L.Yadav (A10) and he RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 31 of 227 32 also knew his daughter Asha Yadav (A5) and his wife Reshma Yadav. After seeing the licence deed contained in file (D1) , he submitted that the same was witnessed by him, and is Ex.PW22/A, which was executed by Reshma Yadav, and he witnessed the same on the request of S.L.Yadav who was working at the relevant time in the personal staff of A1 (deceased).
43. PW23 is Sh.Gopi Nath Yadav, who has deposed that accused Sant Lal Yadav is his brotherinlaw and after seeing the file (D4) he stated that it contains an indemnity bond which was executed in his presence, which also bears his signatures, which is Ex.PW23/A and the licence deed was also executed in his presence and he was a witness to the same which is already Ex.PW5/A and the undertaking given by S.L.Yadav (accused) is Ex.PW23/B and one letter dated 17.11.92 bears signatures of S.L.Yadav which is Ex.PW23/C, the file Ex.PW2/5 also contains the photographs of S.L.Yadav at pages 24 and 25 which are Ex.PW23/D1 and Ex.PW23/D2.
44. PW24 is Khemumal Motiramani. He has deposed that accused Rajan S.Lala was working with him in the Ministry of Home Affairs and Smt.Gopi was his mother. In the year 1991, he was working as Assistant in the Ministry of Home and he had witnessed the indemnity bond of Smt.Gopi which is Ex.PW24/A. He also deposed that the file (D2) also contains an authority letter whereby RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 32 of 227 33 father of Rajan S.Lala asked him to collect the possession/occupation slip on behalf of Smt.Gopi who had issued the authority letter which is Ex.PW24/B. He also identified the photographs kept in file (D2) as that of Smt.Gopi which are Ex.PW24/C1 and Ex.PW24/C2. He also stated that on the basis of said authority letter, he collected the occupation slip in respect of shop no.12, Lodhi road complex market, from the Directorate of Estates.
45. PW25 is Sh.P.Balasubramanian. He stated that in the year 1992, he was posted as Addl.Private Secretary to the then Minister of State for UD Sh.M.Arunachalam on Deputation. He also knew Sh.C.M.Chaudahry, who was the Member of Parliament. After seeing the file D7I, he stated that the same pertains to the allotment of shops to Smt.Tara Chaudhary, w/o Late Sh.C.M.Chaudhary. He also identified the photographs of Smt.Tara Chaudhary Ex.PW25/A1 and Ex.PW25/A2. He also witnessed the indemnity bond executed by her which is Ex.PW25/B and the licence deed was also witnessed by him which is already Ex.PW21/A.
46. PW26 is Raghubir Singh. He was posted at the relevant time as Second P.A to UDM and later on, as APS to UDM. He also stated that he knew Rajan S.Lala and Deepak Kumar is the son of Rajan S.Lala (accused). He also identified the photographs RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 33 of 227 34 Ex.PW18/C1 and C2 as that of Deepak Kumar and licence deed Ex.PW17/A witnessed by him of the said Deepak Kumar.
47. PW27 is Sh.C.P.Gauniyal, he deposed that at the relevant time he was posted as stenographer in the personal staff attached with A1 and Rajan Lala(accused) was Addl.PS to UDM and he was living in R.K.Puram where Mr.Lala was also living. He also stated that he used to attend telephone calls of Rajan Lala and others and his children were studying in the same school where the children of Rajan Lala were studying. He was declared hostile, however in his cross examination by the Ld.PP for CBI, he admitted that during the recording of his statement u/S 161 Cr.P.C, he stated that all the work relating to allotment of shops / stalls were personally looked after by Rajan S.Lala (accused). He also identified the photographs of Deepak Kumar son of Rajan Lala as Ex.PW18/C1 and Ex.PW18/C2 contained in file Ex.PW2/3, which also contained the photographs of Smt.Gopi, mother of Rajan S.Lal. Said photographs are Ex.PW24/C1 and Ex.PW24/C2.
48. PW28 is Sh.G.C.Pandey, who stated that during the relevant time he was posted as Assistant Vigilance Officer in the Ministry of UD and Poverty Alleviation. He after seeing the seizure memo (D25) stated that the same bears his signatures which is Ex.PW28/A, vide which he had handed over the two personal files of Rajan S.Lala and one personal file of S.L.Yadav to the CBI.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 34 of 227
35
He was also shown order dated 19.06.97 which pertains to sanction for prosecution of S.L.Yadav which bears his signatures, which is Ex.PW28/B. He also stated that as per the Authentication of Orders and Other Instruments Act, he as Assistant Vigilance Officer was authorized to authenticate the orders passed by the Central Government/President and thereby, he authenticated the order dated 19.06.97 Ex.PW28/B of Central Government for prosecution of S.L.Yadav. He also stated that he had processed the case for granting sanction for prosecution of S.L.Yadav.
49. PW29 is Sh.S.V.Krishnan, who has deposed that at the relevant time, he was working as Under Secretary in the Ministry of Labour. He stated that the sanction order dated 27.5.97 in respect of Rajan S.Lala bear his signatures on all the four pages and he had conveyed the sanction for prosecution of the said person by the order and in the name of President of India and he had signed being Under Secretary to the Govt. of India against Rajan S.Lala, who was working as Private Addl.Secretary to A1 Sheila Kaul (since expired). Sanction for prosecution was granted because of irregularities in the allotment of shops and quarters.
50. PW30 is Sh.Harcharanjit Singh. He deposed that he remained posted as Director of Estates from 1991 to April 1997, at that time Sh.S.Patnayak was Director of EstatesII, A1 was Minister UDM, Sh.M.Arunachalam was Minister for State and RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 35 of 227 36 Mr.P.K.Thungon was MOS. He also deposed after being shown file D1 that the same pertains to allotment of shop to Reshma Yadav and in the internal page no.12 at the noting portion, there is a note dated 27.9.94 which is marked X1, which bears his handwriting and signatures, the same is Ex.PW33/D. He had recorded the note as the file was marked to him from the office of then UDM. After recording his note, he marked the file to the Dy.Director (Office & Market). Thereafter, the file was again put up to him on 04.10.94 after recording of note of Asstt. Director and also through Director of EstatesII Sh.S.Patanayak. He further deposed that on 04.10.94, he recorded a note, "A for consideration please". He marked the "A" on the noting of the Asstt.Director dated 04.10.94. His notings are Ex.PW30/A and bears his signatures at point A.
51. PW31 is Sh.Khalid Inam. He deposed that he was posted as Assistant Secretary, Regional Office of Board of High School Intermediate Education U.P, Allahabad nine years prior to his retirement in the year 1999. He after seeing the document (D17) Ex.PW11/A stated it is a verification certificate regarding roll no.0723417 pertaining to year 1991 and it was found that the person who appeared on this roll no. was actually Man Singh Yadav and not Deepak Kumar. It bears the signatures of the relevant Clerks and was duly verified by the orders of Addl.Secretary, Regional Office, Allahabad, in the verification, the date of birth was RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 36 of 227 37 also verified and it was found that the date of birth was 18.06.78 and not 04.11.76 as mentioned in the marksheet.
52. PW32 is Sh.K.Dharmarajan. He has deposed that during the relevant time he was posted as Joint Secretary in the Ministry of UD. He was shown the photocopy of file MarkX (D22) pertaining to follow up action on the minutes of the meeting held on 21.06.91 regarding management of markets administered by L&DO. After going through the file, he stated that he recorded a noting on 01.05.92 bearing his signatures, the said noting is Ex.PW32/A. The said noting was regarding allotment of shops in favour of Asha Yadav (accused), Mrs.Gopi and Virender Arora (accused). He also recorded a noting on 01.06.92 bearing his signatures which is Ex.PW32/B, this noting was recorded on the basis of discussion with the Minister regarding the action to be taken in context of allotment of shops.
53. PW33 is Sh.G.B.Singh. He deposed that he retired from the post of Director, Ministry of Finance, Dept. of Financial Services, at the relevant time he was holding the charge of Dy.Director (office & Market) from Nov.1993 till he left the Director of Estates in June 1995. He after seeing the file marked D1, stated that the same pertains to allotment of shop to Asha Yadav, D/o Reshma Yadav, later on at the request of Asha Yadav, shop no.6, Lodhi Road was alloted to Reshma Yadav. He further stated after RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 37 of 227 38 being shown the application dated 01.02.92 that the same was received from Asha Yadav addressed to Minister of UD regarding change of allotment of shop no.6 to 9 and transfer the same in the name of her mother Reshma Yadav. The said application came to him on 13.05.94 from D.EII Sh.S.Patnayak, his initials are on the said letter which is Ex.PW33/A. He also deposed that when he received the application Ex.PW33/A for transfer by Asha Yadav of shop no.6, there was no note of the Minister in this regard. He deposed that the application was processed by the Assistant Director of Estates Mr.P.Bhardwaj vide his noting dated 02.06.94 in file (D1), thereafter the file was marked to him and he endorsed the noting of P.Bhardwaj and forwarded to the then DII Sh.S.Patnayak, same are Ex.PW33/B and bears his signatures at point A. He further deposed that the file again came to him on 01.10.94 from DEI Directorate of Estates to consider the request of Asha Yadav (accused) in the light of the precedent available. He examined the request dated 26.09.94 and stated in his note dated 04.10.94 that if the request is to be agreed it has to be done in relaxation of rules with approval of the Hon'ble UDM and the file was marked to DEII. His noting at page 12/N 13/N is marked as X1 to X1 and bears his signatures at point A and same is Ex.PW33/C. The note was approved by the then UDM Smt.Sheila Kaul (A1) on 05.10.94 vide endorsement of approval RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 38 of 227 39 marked as X2 to X2, which bears her signatures at point B and same is Ex.PW33/D. He further deposed that after approval of the said note, the file again came to him through DEII on 05.10.94. On 06.10.94, P.Bhardwaj, Asstt. Director Estates put up fair allotment letter for his signatures which he did on 06.10.94 and in token of that he signed at point C and same is Ex.PW33/E. The office copy of allotment letter dated 06.10.94 (at page23 of file D1) is on record which was dispatched to Smt.Reshma Yadav bearing his signatures at point A and that of Sh.P.Bhardwaj at point B and same is Ex.PW33/F. Thereafter, he was declared hostile by Ld.PP for CBI on certain points, but he did not support the prosecution case on those points put to him with regard to his previous statement recorded u/S 161 Cr.P.C.
54. PW34 is Sh.Purshottam Bhardwaj, who was posted as Asstt. Director (Mkt.I), Directorate of Estates from Feb.1994 to June 1996. After seeing the file D3 relating to allotment of shop no.11, which is Ex.PW2/4, he identified the signatures of Rajan S.Lala (accused) on the licence deed Ex.PW16/A, as also on the indemnity bond Ex.PW34/A. He was also shown the attested photocopy of certificate of secondary school examination 1982 of Virender Arora (accused) which was attested by Rajan S.Lala with his official stamp, the attestation is Ex.PW34/B. He after seeing the file D1 (Ex.PW2/2) stated that according to the said file, the shop RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 39 of 227 40 was initially alloted to Asha Yadav under the noting of Smt.Sheila Kaul (A1) then UDM at page no.1/N on priority basis. He has identified the signatures of Smt.Sheila Kaul and the noting is Ex.PW34/C. He was also shown the noting of Sh.Mahesh Arora on page 2/N and he has identified his signatures at point A and the noting portion is MarkPW34/1.
55. PW35 is Sh.Sansar Pattanayak, who was at the relevant time posted as Director of Estates (DEII) in the Directorate of Estates, as DEII he was looking after the allotment of residential accommodation from TypeI to TypeIV, office accommodation and markets. During his tenure Sh.Harcharanjit Singh was working as DEI. After seeing the document (D11) which is copy of the Manual of Office Procedure regarding licences in respect of Markets, same is Ex.PW4/B1, he stated that it related to year 1965, which pertains to Directorate of Estates. It came into effect on 01.01.74.The said Manual is regarding allotment and deciding the licence fee of the shops and as per his knowledge, there was no provision for relaxation in the licence fee in the above Manual and in the event of creation of vacancies, in respect of shops and stalls, they used to call for tenders.
He was also shown another document (D12) Ex.PW4/B2 which is an office memorandum dated 24.03.79 which is regarding RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 40 of 227 41 policy to be adopted for development and construction of shopping centers in various govt. colonies, to his knowledge construction of shops was to be undertaken by the CPWD and there was a policy in existence according to which the shops were to be auctioned by L & DO. He also stated that there was a provision for fixing minimum reserve price for auction. He was also shown document (D13) which is a copy of Manual of Office Procedure regarding management of Central Govt. Markets in Delhi / New Delhi, revised upto Feb.1, 1992 issued by Directorate of Estates which is Ex.PW4/B3. After going through the said Manual, the witness stated that vacancies had to be filled as a rule by inviting tender from the public, it also provides for 22.5% reservation for SC/ST candidates.
He was also shown the file (D1) Ex.PW2/2, which file was put up before him on 24.6.94, as there was a request for change of name within the family i.e. from daughter to mother by Smt.Asha Yadav (accused). This application was processed by P.Bhardwaj who was Asst. Director (Estates) at that time vide his note dated 02.6.94. The said note was routed through Sh.G.B.Singh on the same day vide his note dated 02.06.94. He had recorded the request for change of title is not allowed under rules and it gives rise to bad precedent. His noting portion is marked as portion X1 and same is Ex.PW35/A. RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 41 of 227 42 He further stated that the said file again came to him on 04.10.94 alongwith application dated 26.09.94 of Asha Yadav requesting for transfer of allotment in the name of her mother, since she was likely to be married soon, with the instructions to examine the same in the light of precedents and sympathetically. The said instructions came from the office of UDM, the same were sent under signatures of Rajan S.Lala (accused), the file was routed through DEI and came to him through Sh.G.B.Singh ,DD (Markets) on 04.10.94, which he marked to DirectorI (Estates). DD (Market) had recorded that we may agree with the request, but the case be treated as a case of fresh adhoc allotment so that it may not become precedent, the same was approved by A1, then UDM on 05.10.94.
The witness further stated after seeing the file (D2) Ex.PW2/3 that the same was put up before him on 23.09.94 as there was a request from Smt.Gopi Lala, allottee of shop no.12, Lodhi road complex market, in which she informed that her husband had expired last month and she was 71 years old, therefore the shop be regularized in the name of her grandson Deepak Kumar. The same was processed by Sh.G.B.Singh on 22.09.94 vide his note in which he stated that the shop can be regularized in the name of the applicant, if he / she is a widow/son/unmarried daughter of deceased allottee. It was further noted by him that RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 42 of 227 43 there was precedence of regularization of shop in the joint names of grandson and son of deceased allottee and if any relief had to be granted in this case it can be done with the approval of UDM who was vested with the powers to relax the rules. Thereafter, he recommended the case vide note dated 23.09.94 , his note is Ex.PW35/B. The case was put up through DEI and was approved by A1 then UDM on 06.09.94, thereafter the file came back to DEI on 26.09.94 from UDM office which was marked by DEI to DD (OM) on 02.11.94. A draft regularization letter was put up on 04.11.94 by Sh.G.B.Singh, DD (OM) which was seen and signed by him on 04.11.94 and returned to DD (OM).
56. PW36 is Dr.Kiran Chadha, who has deposed that at the relevant time she was working as Director of EstatesII. She after seeing the file mark D1(Ex.PW2/2) stated that same pertains to the allotment of shop to Asha Yadav (accused) and later on to Reshma Yadav and there is a order on the file of then UDM i.e. A1 for allotment of shop on priority basis to Asha Yadav, as she was an unemployed graduate and a women entrepreneur, the said order is marked PW34/C bearing the signatures of A1. After the order, the file was marked to the Division for forwarding to L& DO, who maintained the main policy of allotment of shops. According to normal procedure, the shops can be given in auction or under licence fee. The relaxation of rules was started by then UDM in RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 43 of 227 44 1990. The Market Section of the Directorate of Estates (DEII) forwarded to L& DO under MUD to let us know regarding availability of shops. L&DO placed a shop for disposal and with the approval of Addl.Secretary a shop was duly allotted. Note dated 12.12.91 of Market Section which is already marked PW34/1 was signed by her for forwarding to L& DO which bears her signatures at point B and the file was forwarded by her to Joint Secretary (Housing) who approved on 13.12.91. Later on, on 18.12.91, there was a noting of Sh.Mahender Sharma from L&DO who transferred the shop no.6 LRC to the Directorate of Estate. The file came to him on 26.12.91 for allotment as per UDM's order which was duly approved by the Addl.Secretary. His noting and signatures on the file at page no.4 is at point X and the noting is Ex.PW36/A. After his note, there was a note dated 04.01.92 of Sh.Tripathi the then Addl. Secretary (W). In his noting, he had directed to DEII i.e. her to discuss the matter with him. After discussion with AS (W), she directed DDM to put up a detailed note regarding policy on allotment of shops. She further deposed that on 08.01.92, a noting was put up by the Marketing Section to DDM who further marked the file to DE II and as DEII, she put her signatures on the file which are at point X1 and the file was further forwarded by her back to the Section to prepare the note accordingly. The note was put up by DDM Sh.Mahesh Arora on 14.01.92 which are at page no.6 of the noting RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 44 of 227 45 portion of the file and the note is now marked as X2 and she had forwarded the said note under her signatures to JS/AS. Her signatures is at point X3 and now Ex.PW36/B. Thereafter, AS Sh.C.D.Tripathi vide his note dated 21.01.92, asked to JS to prepare a self contain note in consultation with L&DO on the matter of allotment of shop for consideration of Secretary. She identified the signatures of Sh.C.D.Tripathi at point X4 and the same is Ex.PW36/C. The file was marked by JS(H) to DDM on 21.01.92 for preparing the note.
She further deposed after being shown the file (D2) Ex.PW2/3 that it pertains to the allotment of shop to Smt.Gopi in the Lodhi Road Complex under the control of L&DO. L&DO was requested to let them know if any shop was available for said purpose. L&DO thereafter, confirmed the availability of shops no.7 to 12 in Lodhi Road Complex. Thereafter, Marketing Division put up a note stating that shop was available and offer of allotment may be made to Smt.Gopi as per orders of UDM and approval of AS (W). The note of Marketing Division dated 08.01.92 is Marked X1 and it was forwarded to her for obtaining approval of AS (W). The said noting is Ex.PW36/D. Further, she marked the said file to AS(W) who approved the allotment of shops on 08.01.92. She was further shown the file (D3) Ex.PW2/4 pertaining to allotment of shop no.11, Lodhi road Complex Market to Virender RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 45 of 227 46 Arora (accused), as per approval of UDM a note was put up on 03.02.92 by Marketing Section indicating that as per L&DO confirmation, shops were available from S.No.7 to 12 at the said complex, which may be alloted as per the order of UDM. The note was put up by DD(M) on 03.02.92 indicating that shop no.11 may be alloted to the abovesaid applicant for implementation of orders of UDM. Thereafter, DD(M) put up a note to her on 03.02.92 and she put her signatures on the same and the said note is Ex.PW36/E, thereafter she forwarded the same to JS(H) who directed that orders be issued on prescribed terms.
57. PW37 is Sh.Mahesh Arora. He deposed that he remained Dy.Director Policy and also used to look into the matters of Marketing during the year 19951996. After seeing the file (D1) Ex.PW2/2, he stated that there was a handwritten application at page no.1 of the correspondence portion of file which is dated 24.10.91 and there was also a noting at page no.1 of the noting portion of UDM Smt.Sheila Kaul which is Ex.PW34/C regarding the allotment of shop on priority basis to Asha Yadav (accused) on rental basis. Further, there was his noting dated 24.12.91 at page no.3 4 of noting portion of file wherein he had recorded his note since there was an order of UDM for allotment of shop to Ms.Asha Yadav, before issue of allotment order to Ms.Yadav on the terms and condition similar to the one issued in 1990 in respect of shop in RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 46 of 227 47 the same market alloted by the then UDM. Thereafter, file was put up to the Director of Estate for showing the file to J.S (H)/A.S(W) before issuance of allotment offer.
Further, he after seeing the application dated 01.02.92 at page 21 of the correspondence portion of file Ex.PW33/A, stated that vide this application a request was made for change of shop from 6 to 9 as well as change of name from herself to her mother Smt.Reshma Yadav. The said application was received in the office of DEII and it was sent from the office of UDM with the noting portion Mark X to X which is handwritten. He identified the signature of Rajan S.Lala (accused) at point B who marked the same to DEII.
He after seeing file already Ex.PW2/4 stated that he had dealt with this file pertaining to allotment of shop no.11 to accsued Virender Arora at Lodhi Road Complex. At page no.1 of the said file there is a noting in his handwriting dated 03.02.92 bearing his signatures at point A on page no.2 and said noting is Ex.PW37/A. He had marked this file to the Directorate of Estates. The said file again came to him on 05.02.92 from Director of Estates with the directions of Joint Secretary (Housing) for issuing order as per prescribed terms. He further marked this file to Asstt. Director (MarketI) bearing his initials at point B. He further deposed that the file again came to him on RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 47 of 227 48 12.02.92 from AD (MarketI), as he had examined the documents submitted by accused Virender Arora. He had further approved the noting dated 12.02.92 of AD (Market1) which bears his signatures at point C. Further, after seeing note at page no.5 of the file, which is regarding submission of licence fee for the aforesaid shop, he stated that the noting was put up by AD (Market). The noting bears his signatures at point A and is Ex.PW37/B. He further deposed after seeing the application dated 23.01.92 by accused Virender Arora, which was put up before him through Director of Estates, as there was an order on the application by the then Urban Development Minister Smt. Sheila Kaul on 23.01.92. His initials were at point A and he had marked this application to AD(MarketI) and application is Ex.PW37/C. He had been shown the allotment letter dated 10.02.92 issued under his signatures dated 05.02.92 to accused Virender Arora. Same is Ex.PW37/D and bears his signatures at point A. He had been further shown an application written by accused Virender Arora on 11.02.92 addressed to him as he was then Dy.Director Estates. He had marked the same to AD (MarketI) under his signatures at point A and same is Ex.PW37/E. He had further identified his signatures at point D at page no.5 of licence deed dated 11.02.92 Ex.PW16/A executed by him in favour of accused Virender Arora. He has further deposed after being shown the indemnity RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 48 of 227 49 bond Ex.PW34/A submitted by accused Virender Kumar Arora and witnessed by accused Rajan S.Lala, that he had accepted the same and affixed his signatures alongwith official seal at point B. He had been further shown the office copy of letter dated 19.02.96 issued by him to accused Virender Arora intimating him to deposit the licence fee. Same bears his signatures at point A and is Ex.PW37/F. He further deposed after being shown file Ex.PW2/5 (D4) that he had dealt with the said file and it is pertaining to the allotment of shop to Sant Lal Yadav. The file was put up before him on 19.10.92 by AD (Market), as there was an order dated 28.02.92 of UDM Smt.Sheila Kaul for allotment of shop after shop nos. 7 to 10, Lodhi Road Complex were placed at disposal of Directorate of Estates by L&DO. He approved the same on 19.10.92 as there was a request for allotment of shops serially by AD (Market) and it bears his signatures at point A on page no.1 of the file and noting of AD (Market) is Ex.PW37/G. He had further marked the file to AD (Market). The said file again put up before him on 19.10.92 by AD (Market) for issuance of offer of the allotment letter for shop no.8, LR Complex, C1, to accused S.L.Yadav. It bears his signatures at point B and he had further marked the same to Directorate of Estates.
He further deposed that file was put up before him on 13.02.96 vide noting at page no.5 by Sh.P.Bhardwaj, AD (Market).
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 49 of 227
50
The noting was put up for the purpose of intimating the applicant about the licence fee through a letter and it bears his signatures at point A and is Ex.PW37/H. He after seeing the offer of allotment letter dated 19/26.10.92 stated that it was issued under his signatures at point A to accused Sant Lal Yadav and is Ex.PW37/I. He also deposed after seeing the office copy of letter dated 19.02.96 issued to accused S.L.Yadav that it was regarding intimation to S.L.Yadav to deposit the licence fee and it bears his signatures at point A and the said letter is Ex.PW37/J.
58. PW38 is Sh.V.K.Malhotra. He deposed that in the year 1998 he was Joint Secretary (Center States) (MHA), New Delhi and as Joint Secretary, in the Ministry he was responsible for sanctioning the prosecution of Union Ministers amongst other duties, which he was examining and processing for approval of the President of India. After seeing the Sanction Order dated 23.04.98 of A1, he stated that the same bears his signatures, same is Ex.PW38/A.
59. PW39 is Sh.M.L.Sharma, who was working as Dy.Govt. Examiner of Questioned Documents (GEQD) at Shimla. He has deposed that certain documents pertaining to this case were received on 04.11.96 and 16.12.96 at Shimla from SP, CBI, ACB, New Delhi vide separate letters and these are Ex.PW39/A and Ex.PW39/B and his opinion after considering the specimen RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 50 of 227 51 handwritings and signatures with the questioned handwritings and signatures is contained in Ex.PW39/B and he also stated that Sh.Subhashish Dey, also independently examined these documents and came to the same conclusion, he has identified his handwriting and signatures on the same report at point B, as the said Mr.Dey has died. He also stated that all the documents alongwith his opinion were returned to SP, CBI, New Delhi vide letter bearing signatures of Mr.Dey. The said letter is Ex.PW39/F.
60. PW40 is Sh.Satish Chander Tiwari. He has proved the sanction pertaining to accused D.D.Arora (since expired) on behalf of the President of India as Ex.PW40/A.
61. PW41 is Sh.R.Vishwanathan. He deposed that he had joined the Ministry of Works & Housing as Assistant in year 1972 and in year 1991 he was Desk Officer in the Ministry of Urban Development. He after being shown file (D10) pertaining to allotment of shops stated that during the period w.e.f July 1992 to December 1992, he was dealing with the administrative matters pertaining to Land & Development office and lease administration of the properties held by the L&DO. He further deposed that originally this file was being dealt with by the Directorate of Estates, but this file was received by him because a decision was taken to transfer the subject matter of allotment of shops to L&DO under the control of land division of Ministry of UD.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 51 of 227
52
He further deposed that he had prepared various notes at page2 to page21/C of this file. The notes on page2 to page5 bears impressions of his signatures at point A and are Ex.PW41/A (colly.). The notes on page17 to page19 bears his signatures at point A and same are Ex.PW41/B (colly.).
He further deposed that the shops in government colonies were being allotted to various persons including refugees in 19651 52 on licence basis by then Minister of Works Housing and Rehabilitation, the monthly licence fees were very nominal, ranging from Rs.5/ to Rs.10/ per month, so a decision was taken in 1979 to allot the shops on basis of auctions to the highest bidders to avoid loss of revenue to the government, a reserve price was also fixed for the various colonies, somehow the auction procedure could not materialize for want of offers and bidders, a decision was taken later to transfer all the shops in government colonies to the local bodies namely DMC and NDMC, however on the advice of finance division, the cost of land and construction was to be recovered from the local bodies, as a consideration for transfer, the local bodies did not accept the offer for transfer because the transfer price was very high and they did not have resources to pay the price.
He further deposed that for a decade or so, there was no review of the policy, however in the meantime some shops were RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 52 of 227 53 allotted to individuals by the then Minister of UD in 1989 on licence basis. Again in 1991, some representations were received from some individuals for allotment of shops, the then UDM wanted this issue to be sorted out and the file came to him for examination, the then Joint Secretary of UD Mr.Dharmarajan had recorded in his note dated 01.05.92 at page14 that it was not proper to allot the shops on licence basis, unless there are highly justified grounds for doing so, otherwise the proposal to allot shops on licence basis was likely to invite severe criticism and also charges of bias and discrimination, so he was not in favour of allotment of shops to individuals on licence basis, when the file came to him, he had condensed the facts in his note, largely based upon the use of the then Joint Secretary, thereafter some shops were allotted to a few individuals on licence basis on the basis of the order of the then UDM Smt.Sheila Kaul.
The witness after seeing the file Ex.PW2/2 (D1) stated that vide page1/N, the then UDM Smt.Sheila Kaul had allotted a shop to Mrs. Asha Yadav and then this note had been marked to the then Dy. Secretary (Land) Sh.Pankaj Aggarwal, to process the matter who had marked to DO(LIII). At that time, he was holding the charge of DO (LIII) and so this file was marked to him and on 28.11.91 he had made a note that shops are being alloted on licence fee basis by the Directorate of Estate, therefore this paper RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 53 of 227 54 may be forwarded to DEI for further necessary action. The witness identified his signatures at point B on the noting at page1 and is Ex.PW41/C. The witness after seeing the file (D22) page22 to 25/N(which are photocopies of notings, original are in RC No.48(A0/96, CC No.15/11, chargesheetIII as D84), stated that all these pages bears his signatures and are Ex.PW41/D to Ex.PW41/G. Vide these notings one Srikrishan Kumar was recommended by different MPs , but on account of existing policy for allotment of shops through public auction, the regret reply was sent with the request that he may participate in the auction. The witness has also proved the notings in file (D22) at page33 and page35 as Ex.PW41/H and ex.PW41/I, vide which the witness has noted that various representations were received from different sources, which were mainly forwarded by VIPs and regret reply should be sent to those individuals as, as per the existing policy the shops were to be disposed off by the public auction.
62. PW42 is Sh.D.K.Singh, Retired SubInspector, he has stated that in this case, he was assisting the main IO and he had correctly recorded statements of some of the witnesses namely S.Pattanayak, Harcharanjit Singh, K.D.Singh and others and also seized certain documents through seizure memos. He has proved one of those memos as Ex.PW4/A bearing his signatures. Similarly, RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 54 of 227 55 he also stated that seizure memo Ex.PW20/A also bears his signatures.
63. PW43 is Sh.P.C.Sharma, the main IO of this case, who has deposed regarding the investigations carried out by him in this case.
64. PW44 is Sh.Narendra Nath Singh, who was posted at the relevant time as Superintendent of Police, ACB, New Delhi. In this case, he had ordered for registration of FIR, copy of the FIR (D24) bears his signatures at page no.5 at point A and same is Ex.PW44/A. He had also sent letter to GEQD, Shimla for expert opinion of questioned documents, the letter dated 01.11.96 is already Ex.PW43/B.
65. PW45 is Sh.C.K.Sharma, Inspector CBI. He had also taken some part in the investigations, as he has stated that on the directions of then SP Sh.N.N.Singh, he assisted main IO Sh.P.C.Sharma, DSP and on his instructions he visited Allahabad in the month of May 1998 for the purpose of verification of marksheet of Deepak Kumar and for which he made inquires and consulted Addl.Secretary, U.P Education Board pertaining to the marksheet of Deepak Kumar.
66. Thereafter, the prosecution evidence was closed and the statements of accused persons u/S 313 Cr.P.C were recorded separately in which the entire incriminating evidence appearing RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 55 of 227 56 against the accused persons were put to them. The defence of the accused Rajan S.Lala (A2) was as under: It's a false case against me. There was no clear cut or cogent policy for disposal of vacant shops. The modalities for auction of shops had not been finalized. The shops could not be auctioned earlier on account of high reserve price. Even after reducing the reserve price by 50%, the shops could not be auctioned for want of bidders. Since the reserve price was not finalized as such the tenders could not be invited. The shops were thus lying vacant for a very long time calling for extensive repair and was causing loss of revenue to the Government. The reserve price for auction or inviting tenders had not been finalized till late 1995. One of the modes for allotment was by leave and License basis which was adopted by earlier Ministers also as there was a provision for making exceptions in the matter of allotment if the circumstances so warrant.
At the time of allotment, the payment of economic license fee was being followed.
There was a specific stipulation in the License deed that the allottees will pay the charges as may be decide by the Government from time to time with retrospective effect and the license could be revoked by the Government without assigning any reasons with a notice of 30 days. There was no pecuniary loss caused to the Government. This was to safe guard the interest of the Government and in view of the fact that the policy in this regard was not finalized.
I have not abused my official position or entered into any conspiracy with Smt. Shiela Kaul or the allottees for the allotment. I have no role to play in the matter of allotments. The RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 56 of 227 57 allotment to my mother Smt. Gopi Lala was on compassionate grounds as recommended by a Member of Parliament and for which she was otherwise eligible. Subsequent transfer of the shop to Deepak Kumar on the application of Smt. Gopi Lala on account of death of her husband is a normal course. I have been falsely implicated in the case. I am innocent.
67. Similarly, the defence of accused Asha Yadav was that she had applied as unemployed graduate woman and got it. She is innocent and had been falsely implicated in this case and she did not get the shop on compassionate grounds.
68. Similarly, the defence of accused Virender Arora was that he is innocent and has been wrongly impleaded in the instant case.
69. Similarly, the defence of accused Sant Lal Yadav was that he is innocent and got the allotment being handicapped person. He had been falsely implicated in this case and did not get the shop on compassionate grounds.
70. Similarly, the defence of accused Sanjeev Saluja was as under: In the year 1992, I was an unemployed graduate and was looking for a place to start my own shop. I use to frequent various places in Delhi in the search for a place where I could start my own shop. My father was a retired Government Servant and my mother was also in Government Job. I have an elder sister and a younger brother who RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 57 of 227 58 was studying at that time. My parents therefore were hard pressed for money and could not afford to buy me a place for my business. In the meanwhile I came to know that some shops were lying vacant in Lodhi Road Complex Market and the Government allots these shops on licence fee basis to Unemployed graduates, Handicap persons and other such deserving people. It also transpired that such allotments are made under the Ministers discretionary quota to provide immediate relief in the above mentioned situations. I also came to know that even previous minsters i.e. Sh Abdul Gafoor, in the year 1986 allotted few shops on licence fee basis and thereafter Smt. Mohsina Kidwai from 1987 to 1990 also alloteed a number of shops on licence fee basis. I discussed the issue with my parents. Neither me nor any of my family members knew the then Urban Development Minister. However the then Secretary Urban Development was known to us. I met Shri Raj Bhargava, the then Secretary, Urban Development in Jan/Feb 1992.I gave my application and he told me that he did not have the powers to allot the shop, however since I was deserving candidate, he would forward my application in the due process. I use to visit Nirman Bhawan, to find out about the fate of my application. The entry to the Ministry was controlled and a pass was required to go inside. I was most of the times RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 58 of 227 59 not allowed to go inside. I use to call up the concerned section on an internal phone from the reception and was told that there was no news about the fate of my application.
I moved another reminder in October, 1992 to inquire about the fate of my application. I was then informed that a shop has been allotted to me and I had to complete certain formalities and submit documents to take possession of the shop. I accordingly completed the formalities and submitted the required documents, and only on scrutiny of my documents , when they were found in order, I was allotted the shop on Licence basis on a monthly rental / monthly Licence fee.
Initially the Licence fee was fixed as Rs. 654/ per month, however the licence fee was later enhanced to Rs. 792/ per month from the date of allotment and I paid the arrears. Tenders were invited for the shops in Lodhi Road Complex including for the shop that was allotted to me. I did not participate in the tender process as I was not financially sound to bid for the tenders as the prices were too high. I also suffered a loss in the business and could not even repay the loan which was taken by me from my parents to start the shop. Since I did not participate in the tender process, I was directed to vacate the shop. Finally on 25/06/1997 which was within the time as stipulated by the RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 59 of 227 60 Directorate of Estates to vacate the shop and much before the chargesheet was filed, I handed over the vacant and peaceful possession of the shop back to CPWD. I always deposited the monthly licence fee on time and no recovery was ever raised against me nor was ever any recovery proceedings initiated against me with regard to allotment of the said shop.
On 6/6/98 chargesheet was filed in the Hon'ble Court. I was arrayed as an accused with other allottees and the then Urban Development Minister and her personal staff. It was a clear cut case of misjoinder. Neither me or any of my family members knew or even approached the then Urban Development Minister nor was /is there even an iota of evidence both either verbal or documentary to the said effect. As per the orders of the Ld. Trial Judge in the connected matter on the point of misjoinder it was amongst others held that If any offence has been committed in the allotment of shops, then every allotment amounts to a distinct offence, committed in furtherance of a separate conspiracy between the minister and the allottee concerned.
On 2/9/2000 the Ld predecessor of this Hon'ble Court in a connected matter i.e.Chargesheet No. 2 passed an order and amongst others rightly held that:
".... Ld prosecutor has failed to show me RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 60 of 227 61 that the present case falls within any other exception provided u/s 219 to 221 as well as 223 Cr.P.C. Therefore, section 218 Cr.P.C. comes into picture and for every offence relating to allotment of shops a separate charge has to be framed and a separate trial has to be there. Thus in my opinion, this is a clear case of misjoinder of charges and accused persons and joint trial cannot continue. Thus, under the circumstances, without passing any order of discharge or acquittal, I direct that documents and statements of witnesses filed with the chargesheet be returned to the prosecution with the directions to split and file separate chargesheets in relation to the separate offences and accused persons. As and when separate chargesheets are filed, the case shall proceed for trial in accordance with law. File be consigned to record room.....".
Aggrieved by the said order of the Ld Trial Court, both the prosecution and the accused went in Revision to the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi while allowing and disposing of the said Crl Rev P 585/2000 amongst others held that:
"..... Since both the parties are aggrieved of the order under challenge,I set aside the same.It would be open to all parties to take whatever pleas that are available to them at law and the Special Judge shall decide the matter denovo without being RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 61 of 227 62 influenced by the order of this Court or by its own earlier orders....".
Present case against me is bad for misjoinder. The prosecution has failed to establish any conspiracy between me and other coaccused including the Public Servants. I further state that the statements of witnesses have not been correctly recorded by the IO. Pick and choose policy has been adopted with regard to seizure of the documents and recording of the statements of the witnesses by the IO.
No efforts were made either to trace the relevant file relating to my allotment or my initial application for allotment. The prosecution for the reasons best known to them, did not even question Sh Raj Bhargava, the then Secretary for Urban Development, Government of India and he was was neither arrayed as a witness nor as an accused.
It is further submitted that in response to an RTI Application filed by me to know the status of the shop that was allotted to me it has been reveled that the person who was the successful bidder in the tender process for the shop in question and to whom the shop was later allotted, did not pay the Licence fee, and after following the due process, not only his allotment was cancelled but recovery proceedings were also initiated against him. On the basis of the information received by me , it has also transpired that RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 62 of 227 63 the Government has not been successful in recovering the amount from him and the shop is lying vacant till date.
It is further submitted that "power to allot shops" and that too under the discretionary quota, cannot be treated as "property" within the meaning of section 405 of the Indian Penal Code, capable of being misutilized or mis appropriated. The minister merely makes an order of allotment.
Subsequently the Directorate of Estates enters into an agreement with the allottee and the business is regulated by the agreement between the allottee and the Directorate of Estates.
It is further submitted that no facts were ever concealed by me while applying for the allotment of the shop. All the documents that were asked for before the allotment from me, were submitted by me to the Directorate of Estates. Only after due scrutiny of my documents and after they were compared and found to be in order, they were approved and accepted and thereafter the authority slip for taking possession of the shop was issued to me for taking possession of the shop on monthly rental / licence fee.
It is also pertinent to mention that a false case was registered inspite of their being no evidence of any bribery or corruption in the matter of allotment of Government accommodation as well as shops and stalls RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 63 of 227 64 by the Ministry of Urban Development.
Further with regard to the allotment of government residences (out of turn), an Ordinance dated 21.06.1997 was promulgated by the President of India, by way of which the same were validated. The ordinance however unfairly treats me (allottee of shop) without giving any reason.
71. Thereafter, accused (A12) Sanjeev Saluja examined one witness Ravi Kumar Meena as D(A12)W1 in support of his defence, but none of the other accused persons examined any witness in their defence.
72. I have heard the Ld.counsels for accused persons Sh.S.P.Minocha, Sh.Gagan Minocha, Sh.M.P.Singh, Sh.Sunil Mittal, Sr.Advocate Sh. Sunil Sethi and Ms.Chitra Mal (legal aid counsel) and Ld. PP for CBI Sh.Naveen K.Giri. I have also gone through the written submissions filed on behalf of accused Sanjeev Saluja. He has also relied upon the following judgments:
(i) 2001(1) AICLR 325 titled as Mohammed Sheriff Vs. State of Kerala
(ii) 2000(4) Crimes 41(SC) titled as State of Kerala Vs. P.Sugathan & Anr
(iii) 2005(4) Crimes 191(SC) titled as State(NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 64 of 227 65
(iv) (1995) 1 Supreme Court Cases 142 titled as P.K.Narayanan Vs. State of Kerala.
(v) IV (1999) SLT 402 titled as State through Superintendent of Police/CBI/SIT Etc vs. Nalini & Ors
(vi) VI(1999) SLT 442 titled as Common Cause, A registered Society Vs. Union of India & Ors
73. The prosecution has relied upon following judgments in support of its case:
1. Vinayak Narayan Deosthali Vs Central Bureau of Investigation 2015 Cri.L.J.1554
2. Runu Ghosh Vs.CBI Crl.A.482/2002, P.Rama Rao Vs CBI Crl.A.509 and Crl.A.536/2002 Sukh Ram Vs CBI.
74. Ld.counsel for A2 has firstly argued that the very sanction accorded in the present case u/S 197 Cr.P.C is defective in nature, as PW29 Sh.S.V.Krishnan was not competent to accord sanction for prosecution of A2 on behalf of the President of India, as no such authority or rules have been produced which should show that he was delegated the said power on behalf of or for the President of India. He has also argued that even otherwise, the sanctioning authority did not apply its mind independently, as even the proforma RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 65 of 227 66 copy of the sanction order was received from CBI, and the sanction was finally accorded in the same manner which shows total non application of mind. Even otherwise, the entire material was not placed before the Sanctioning Authority, therefore sanction is invalid. Further even otherwise, the Under Secretary to the Government of India could not have granted sanction on the behalf of the President of India.
75. He has further argued that there was no clear cut policy for disposal of vacant shops. The modalities for auction of shops had not been finalized. The shops could not be auctioned earlier due to very high reserve price, even after the reduction of reserve price by 50%, the shops could not be auctioned for want of bidders, since the reserve price could not be finalized, therefore tenders could not be invited. Even otherwise shops in question were lying vacant for a long time, calling for extensive repairs which was rather causing loss of revenue to the government.
76. He further argued that one of the modes for allotment of shops was by the leave and licence basis which was adopted by earlier Ministers in the UD Ministry, as there was a provision of making exceptions in the allotments, if the circumstances so warranted.
77. He has further argued that the allotment of shops in the present case was with regard to the Lodhi Road Market Complex RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 66 of 227 67 and it was not located in commercial hub, but were shops of the locality and were not meant for purposes other than the needs of the people of the locality, even otherwise the said shops were lying vacant for a long time, the Secretary (UD) endorsed the giving of the shops on leave and licence basis, as the earlier auctions were not fruitful and no policy / modalities for allotment of shops at Lodhi Road Market Complex was made, there were no bids and the matter was put up for review of policy, there was no nepotism that the shops were alloted at the instance of the staff members of A1, the allotment had been made on consideration of grounds mentioned in the application submitted by the applicants, there was no pecuniary loss or loss of any revenue to the Government Exchequer, which is borne out from the noting of the Secretary (UD).
78. He has also argued that the Finance Department had also not made any dissenting note nor any other officer had made any dissenting note on the noting file, therefore this clearly shows that there was no unfair allotment in the present case. He has further argued that no evidence of conspiracy had come on the record, as all the accused persons were not having any sort of connection with each other, therefore, no illegal agreement to commit an illegal act can be made out from the distinct acts of the accused persons in this case. Therefore, he has argued that no offence u/S 13(1)(c) RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 67 of 227 68 and 13(1)(d) r/w Sec.13(2) of PC Act r/w Sec.120B IPC is made out. He has also argued that no offence u/S 409 IPC is made out against any of the accused persons, as there was no entrustment of any property i.e. the shops to A1 nor she can be said to have dominion over the said shops which she dishonestly misappropriated or converted to her own use, therefore he has argued that A2 is liable to be acquitted on all counts.
79. Ld. Legal Aid counsel for A5 and A10 have more or less adopted the arguments of Ld.counsel for A2. Besides that she had argued that A5 and A10 were poor persons, as A5 was unemployed woman entrepreneur, whereas A10 was a handicapped person, both of them had moved applications through proper channel, which were allowed in due course and there was no evidence of conspiracy between them and A1 and other accused persons, as it was extremely difficult for persons of such status to even meet A1 in those days. Therefore, she has argued that both of them are liable to be acquitted.
80. Similarly, Ld.counsel for A7 has argued that the shops were alloted on leave and licence basis which was not a fixed amount, but it was liable to be increased with retrospective effect and they were liable to be evicted from the shop at any time and no transfer of interest in the property or shop was passed in their favour nor there was any conspiracy between A7 and other RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 68 of 227 69 accused persons and Minister had discretionary quota and she (A
1) exercised the said discretion by allotting the shop in favour of A 7 and there was no illegality in the same, as A7 was unemployed graduate, therefore there was no illegality in the allotment and A7 is liable to be acquitted.
81. Ld. Counsel on behalf of A12 has filed detailed written submissions in which same grounds have been stated as has been argued by the other defence counsels as mentioned above. Besides, it is argued that the previous UDM in 1989 had exercised her discretion as per exception clause3 as per the OM of 1979 and had alloted 15 shops to different persons and in the present case also the same discretion had been exercised as per the said OM after the matter had been examined by the higher officers of the UD Ministry with financial concurrence and consequently there was no loss of revenue to the government. The discretion had been validly exercised as per the clause3 of the above OM and Manual of Office Procedure for Management of Central Government Markets Ex.PW4/B2.
82. He has also argued that there was a clause12 in the Office Procedure for Management of Central Government Markets in Delhi / New Delhi revised upto Feb. 1, 1992 which also shows discretion was validly exercised. He has further argued from the testimonies of PW12 and PW14, it was clear that reserve price of RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 69 of 227 70 the shops were very high, therefore no bidder came forward and the shops were lying vacant for 10/15 years which was rather causing loss to the Government. He has further argued that the stipulations in the licence deed shows that the allottees were liable to pay the charges as may be decided by the government from time to time with retrospective effect and the licence could be revoked by the government without assigning any reason. He has also argued that all the accused persons were differently situated, therefore there could not have been any conspiracy between the accused persons, as the said accused neither knew A1 nor met A1 at any point of time. Therefore, A12 is also liable to be acquitted as nothing has been proved against him. He has also argued that the defence witness examined by him D(A12)W1 shows that he had vacated the shop immediately on 25.6.97 which also shows that there was no dishonest intention on the part of the accused. He has relied upon a judgment Common Cause, A Registered Society Vs Union of India & Ors. VI (1999) SLT 442.
83. On the other hand Ld.PP for CBI has argued that sanction u/S 197 Cr.P.C has been validly granted against A2, which has been proved by PW29 who was working as Under Secretary to the Government of India at the relevant time and as per ' the Authentication (Orders and Other Instruments) Rules, 1958, an Under Secretary to the Government of India has been authorized by RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 70 of 227 71 the President of India to authenticate the orders made and executed on behalf of the President of India. Therefore, the said sanction order is valid. Even otherwise, the entire material had been placed before the sanctioning authority, who after going through the entire material placed before it, granted the sanction in independent manner, therefore there is no infirmity in the same. In the alternative he has argued even otherwise sanction was not required qua A2, as it is settled law that committing conspiracies or offences is no part of official duties of any public servant.
84. He has further argued that it is the admitted case that at the relevant time A2 was posted as Addl. P.S to UDM i.e. A1, and one shop was also alloted to his mother A8 which was later on got transferred by her in the name of her grandson i.e. the son of A2 by exercising undue influence upon A1. Though there was no rule permitting such transfer interse. He has argued that all the allotments in the present case were made flouting the norms of allotment existing at that time, which as per the Office Memorandum of the year 1979 was to be made by way of open public auction or inviting tenders. He has also argued that no other public person other than the privileged ones who are accused in the present case, were allowed to participate in the allotment procedure or process which was even otherwise not transparent in any manner and all the allotments were made to selected few in a hushhush manner, RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 71 of 227 72 thereby causing substantial loss of revenue to the government. He has further argued that any departure from the established norms in terms of the Office Memorandum, 1979 and of Manual of Office Procedure for Management of Central Government Markets had to be made on the basis of some reasonable classification and no reason for exercising such a discretion had been indicated in the notes for approval. He has also argued that in appropriate cases, Court can examine the extent of administrative discretion, if same is totally arbitrary, capricious or unreasonable and is contrary to the Article 14 of the Constitution of India.
85. He has also argued that all the allotments in the present case were made against all the established norms by nepotism, as there were lakhs of other people who were unemployed, entrepreneurs, suffering from disability, who were also similarly situated as other accused persons, yet they were never invited for participation by calling tenders or public auction which could have fetched huge amount of revenue to the government. He has also argued that there is seldom any direct evidence of conspiracy, rather conspiracy is always shrouded in secrecy, however there was a pattern in the present allotment made to all the accused persons in a similar way which gives rise to the inference of conspiracy.
86. He has also argued that Section 409 IPC is also made out, as all the shops could be said to be in the custody / entrustment of RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 72 of 227 73 A1 who was the Minister (UD) at the relevant time, yet she in blatant violation of norms, by abusing her official position alloted the shops in most arbitrary manner, therefore all the accused persons are liable to be convicted for the offences for which they have been charged.
87. I have gone through the rival contentions of the parties and gone through the relevant record.
Regarding Sanction
88. Regarding the sanction part, as already stated above, Ld. Counsel Sh.S.P.Minocha on behalf of A2 Rajan S.Lala has argued that the sanction in the present case had been accorded by PW29 Sh.S.V.Krishnan vide sanction order dated 27.05.97, whereas at the relevant time PW29 was only working as Under Secretary to the Government of India. Therefore, he has argued that the said sanction order is invalid for the reason(s) firstly, that PW29 was not competent to grant sanction against A2, as no rule has been stated in the sanction order dated 27.05.97 that he was having any delegated power of authentication on behalf of or for the President of India. Secondly, that no material was produced before the sanctioning authority and further, even a draft sanction order was also sent alongwith the request for granting sanction, therefore the sanction order has been passed without going through the material RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 73 of 227 74 in a mechanical manner, without due application of mind. On the other hand, Ld.PP for CBI has argued to the contrary.
89. I have gone through the rival contentions. PW29 Sh.S.V.Krishnan has proved the sanction order dated 27.05.97, which is a sanction to prosecute A2 u/S 197 Cr.P.C. The said sanction order is quite exhaustive and from the perusal of the same, it appears that entire material which was necessary for according the sanction had been placed before the sanctioning authority and the sanction was granted after perusal of the entire material and after due application of mind. The said sanction order dated 27.05.97 was inadvertently not exhibited in the testimony of PW29, though the same has been only proved in his testimony. Therefore, the same is now exhibited as Ex.P29.
90. Regarding the proforma / draft sanction order being received with the file for approval of the sanction, as has been admitted by the said witness in his cross examination, the same to my mind not invalidate the said sanction order, as the draft sanction order may have been sent alongwith the file seeking sanction, as sometimes the sanctioning authority is confused, as they sometimes wonder, whether sanction order had to be submitted in a particular proforma or manner in the court of law, in order to have clarity in the matter and for this purpose only, the draft sanction order is sometimes sent with the file for sanction of prosecution.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 74 of 227
75
91. Regarding the argument of Ld.defence counsel that no rule has been stated in the sanction order dated 27.05.97 that PW29 was having any delegated power on behalf of or for the Hon'ble President of India to authenticate the said sanction order. In this regard, the President of India has framed rules called "The Authentication (Orders and other Instruments) Rules, 1958"
pursuant to the power exercised under Article 77 of the Constitution of India and the said Rules of 1958, most specifically Rule 2 provides that "Orders and other instruments made and executed in the name of the President shall be authenticated
(a) by the signature of a Secretary, Additional Secretary, Joint Secretary, Deputy Secretary, Under Secretary or Assistant Secretary to the Government of India. No precise word or manner except the signatures of the officials named in clause(a) of Rule 2 has been prescribed for purposes of authentication. The meaning of authentication and the law in this regard has been laid down in the judgment AIR 1969 DELHI 285 Zalam Singh and others Vs Union of India and others. The relevant paras are reproduced as under:
11. What has in fact to be seen in such cases is the substance of the order or the instrument with all its attending circumstances and not merely its form.
RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 75 of 227 76 Provisions of Article 77 are not mandatory. They are directory and keeping this in view any hair splitting in construing these provisions would not be justified.
Authentication according to Webster's New International Dictionary means to render authentic, to give authority to, by the proof, attestation or formalities required by law or sufficient to entitle to credit, as the document was authenticated by a seal. According to Shorter Oxford English Dictionary this word means 'to give legal validity to; establish the validity of, to establish the genuineness of.' It is in this common sense that the word "authenticated" has been used in subcl.(2) of Article 77 of the Constitution. In 1952 SCR 674; AIR 1952 SC 317, their Lordships have said that the Constitution does not require a magic incantation which can only be expressed in a set formula of words. Article 77 essentially relates to the form in which the particular executive action is to be expressed and being a matter of form and not of RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 76 of 227 77 substance, its provisions are merely directory and not mandatory. The appointment of Controller and Additional Controllers by the Central Government under Section 35 of the Act is an administrative function and what has to be seen is whether in effect there has been a substantial compliance with Article 77 or not.
12. Subclause (2) of Article 77 provides that orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in the rules to be made by the President. In exercise of the powers conferred by this clause, the President has framed rules called " the Authentication (Orders and other Instruments) Rules, 1958." Rule 2 of these Rules provides as under: "Orders and other instruments made and executed in the name of the President shall be authenticated
(a) by the signature of a Secretary, Additional RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 77 of 227 78 Secretary, Joint Secretary, Deputy Secretary, Under Secretary or Assistant Secretary to the Government of India, or
(b) ............
(c) ............
(d) ............
(e) ............
(f) ............
(g) ............
(h) ............
(i) ............
(j) ............
(k) ............
(l) ............
(m) ............
(n) ............
(o) ............
(p) ............
(q) ............
13. No precise word or manner except the signatures of the officials named in clause (a) of Rule 2 has been prescribed for purposes of authentication. That being so nothing has RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 78 of 227 79 been pointed out to us to show why the signatures of Shri S.C.Vajpeyi with the designation "Under Secretary" added to it should not be taken in this Gazette notification to be a sufficient authentication within the meaning of subclause (2) of Article 77 of the Constitution.
92. In the said judgment it has been clarified that meaning of the word authentication is to give authority to, by the proof, attestation or formalities required by law or sufficient to entitle to credit, as the document was authenticated by a seal. In view of the said judgment and Rule 2(a) of the Rules of 1958 reproduced above, there was a valid delegation of powers in favour of PW29 to authenticate the order for or on behalf of the President of India, therefore the sanction order Ex.P29 is a valid sanction order and sanction has been accorded in a proper manner.
93. In the present case allotment of various shops were made to various persons including A5, who was the daughter of A 4 (since expired), who was then working as Assistant P.S to A1, who was UDM at that time. Similarly, shop was also alloted to A7 who is the son of A3 who was working as Addl. P.S to UDM i.e. A
1. Shop was also alloted to A8 (since expired) who is the mother of A2, who was also working as Addl.P.S to UDM i.e. A1 at the RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 79 of 227 80 relevant time. Thereafter, shop was also alloted to A10 who was a handicapped person. Similarly, a shop was also alloted to A11 (also expired) as also A12 who claimed to be an unemployed youth. A13 was alloted a shop who was also wife of Member of Parliament (since Proclaimed Offender). In the present case, there is no common thread which relates to all the allotments. All the allotments were made to separate persons by separate notings. Therefore, it would be relevant to discuss the same separately.
94. Now firstly, the case of A5 Asha Yadav, who is the daughter of A4, who was then working as Assistant P.S to UDM i.e. A1. Though, this fact is admitted, as nobody has disputed the same during recording of evidence and arguments. Even otherwise, the same has been proved in the testimony of PW30 that at the relevant time A4 was working as Assistant Private Secretary to UDM i.e. A1. The origin of allotment of shop to A5 commences straight away from the note dated 29.10.91. Though the relevant application by virtue of which A5 wrote to the A1 praying that she came to know that a shop was lying vacant in Lodhi Road Market complex and that she was unemployed graduate and has no means of livelihood, therefore a shop may be alloted to her, could not be proved. However, the said note whereby she was alloted a shop by RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 80 of 227 81 the then UDM i.e A1 very shortly thereafter is Ex.PW34/C in file (D1). The said note was proved by PW34 Sh.Purshottam Bhardwaj, who at the relevant time was posted as Assistant Director (Mkt.I) in the Directorate of Estates. He has identified the signatures of A1 who was then UDM. The same witness has also identified the noting portion of Mahesh Arora which is Ex.PW34/1. The aforesaid notings are reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 81 of 227 82 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 82 of 227 83 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 83 of 227 84
95. Thereafter, another noting was made by PW36 Ms.Kiran Chadha, who was working as Director of Estates II. She also stated that she had dealt with the file (D1) during her tenure and there is a order on the file which is Ex.PW34/C vide which the then UDM Sheila Kaul (A1) had ordered for allotment of a shop on priority basis on normal rental basis to Ms.Asha Yadav (A5), as she was unemployed graduate and a woman entrepreneur. She has also identified the signatures of UDM on the said order. She further deposed that after the order, the file was marked to the Division for forwarding to L&DO who maintains the main policy of allotment of shops. According to the normal procedure, the shops can be given in auction or under a licence fee. Relaxation of the rules was started by Smt.Mohsina Kidwai the then UDM in 1990. She has also further explained the procedure by saying that the Market Section of the Directorate of Estate (DEII) forwarded to L & DO under MUD to let them know regarding the availability of shops. L&DO placed a shop for disposal and with the approval of Additional Secretary a shop was duly allotted. Note dated 12.12.91 of Market Section Mark PW34/1 was RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 84 of 227 85 signed by her at point B for forwarding to L&DO, which file was forwarded by her to Joint Secretary (Housing) who approved on 13.12.91. Thereafter, on 18.12.91, there is a noting of Sh.Mahender Sharma from L&DO, who transferred the shop no.6, LRC to the Directorate of Estates. The file again came to her on 26.12.91 for allotment as per UDM's order which was duly approved by the Additional Secretary. Her noting and signatures on the file at page no.4 is at point X and is Ex.PW36/A. The relevant notings are reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 85 of 227 86 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 86 of 227 87 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 87 of 227 88
96. After that there is a note dated 04.01.92 of Sh.Tripathi the then Additional Secretary (W). In his noting, he has directed to DEII i.e. PW36 to discuss the matter with him. Thereafter, she (PW36) discussed the matter with him and after discussion with AS(W), she directed DDM to put up a detailed note regarding policy on allotment of shops. On 08.01.92 a note was put up by the Marketing Section to DDM, who further marked the file to DEII and as DEII, she put her signatures on the file at point X1 and the file was further forwarded by her back to Section to prepare the note accordingly. The relevant notings are reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 88 of 227 89 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 89 of 227 90 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 90 of 227 91
97. Thereafter, a note was put up by DDM Sh. Mahesh Arora on 14.01.92 which is at page no.6 of the noting portion of the file (D
1) and note is marked as X2 and she had forwarded the said note RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 91 of 227 92 under her signatures to JS/AS. Her signatures are at point X3 and is Ex.PW36/B. Thereafter, AS Sh.C.D.Tripathi vide his note dated 21.01.92 asked JS to prepare a self contain note in consultation with L&DO on the matter of allotment of shop for consideration of Secretary. She identified the signatures of Sh.C.D.Tripathi, as she had seen him writing and signing during official course of her duty which are at point X4 and is Ex.PW36/C. The matter did not end here.
98. Accused Asha Yadav (A5) after allotment, gave another application Ex.PW33/A that though, she had been alloted shop no.6 in Lodhi Road Complex Market on rental basis, but no.6 did not suit her numerologically, therefore the number of shop be changed from 6 to 9 and the shop be changed in the name of her mother Smt. Reshma Yadav. Thereafter, the notings again started and it was observed in the said notings that in the allotment letter it was clarified that the shop is not to be transferred or sublet to any other person in any case. The relevant application / notings are reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 92 of 227 93 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 93 of 227 94 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 94 of 227 95 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 95 of 227 96 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 96 of 227 97 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 97 of 227 98
99. Thereafter, the notings again started and it was observed in the said notings that in the allotment letter it was clarified that once a shop is allotted in the name of a particular person, its title is not transferred i.e. the shop cannot be regularized in the name of any other person except in the names of legal heirs in case of death of the allottee and it was also observed that if the request of Ms.Asha Yadav (A5) is entertained, it would create a bad precedent and they would not be in a position to oblige everyone if similar request is received. Therefore, as the case is not covered at all under the Rules, therefore they can send a regret reply. The relevant noting has been proved by PW33 Sh.G.B.Singh. PW33 deposed that when he received the application Ex.PW33/A for transfer by Asha Yadav of shop no.6, there was no note of the Minister in this regard. On being shown note dated 11.05.94 from portion X to X he stated that it was recorded by someone in the personal staff of the Minister, but he cannot say who had recorded that note.
100. He further deposed that the application was processed by the Assistant Director of Estates Mr.P.Bhardwaj vide noting dated 02.06.94 in file D1. Thereafter, the file was marked to him and he endorsed the noting of PL.Bhardwaj and forwarded the same to the then DII Sh.S.Pattanayak. His signatures are at point RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 98 of 227 99 A and same is Ex.PW33/B. The file then again came to him on 01.10.94 from DEI, Directorate of Estates to examine the request of Asha Yadav may be considered in the light of the precedent available and he examined the request dated 26.09.94 and stated through his note dated 04.10.94 that if the request is to be agreed it has to be done in relaxation of rules with approval of the UDM and the file was marked to DEII. His noting is at page 12/N13/N marked X1 to X1 and bears his signatures at point A and same is Ex.PW33/C. He also stated that the note was approved by the then UDM Smt.Sheila Kaul (A1) on 05.10.94. Her endorsement of approval is marked X2 to X2 and it bears her signatures at point B and same is Ex.PW33/D. After approval of the said note, the file again came to him through DEII on 05.10.94. On 06.10.94, P.Bhardwaj Assistant Director Estates put up fair allotment letter for his signatures which he did on 06.10.94 and in token of that he signed at point C and same is Ex.PW33/E. The office copy of allotment letter dated 06.10.94 (at page 23 of file D1) is Ex.PW33/F which was dispatched to Smt. Reshma Yadav and same bears his signatures at point A and that of Sh.P.Bhardwaj at point B. He was also shown the licence deed dated 13.10.94 Ex.PW23/A executed between the President of India and Reshma Yadav. Same bears his signatures as Dy. Director of Estates at point B and that of Reshma Yadav at point C. RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 99 of 227 100
101. He was also declared hostile by Ld.PP for CBI and in his cross examination on behalf of prosecution he was asked whether he can identify the signatures of person who had signed at point A on Ex.PW33/A, to which he stated that he cannot identify the signatures as that of accused Rajan S.Lala. In his cross examination he denied that A2 Rajan S. Lala returned the file vide his note dated 27.09.94 again mentioning that there was a precedent where the shop has been transferred in relaxation of market instruction and UDM desires that request be examined in the light of this precedent sympathetically. Despite his attention being drawn from portion Y to Y on page12 of file D1, the witness stated that he do not know who had recorded the said note.
102. Regarding the allotment of another shop in the Lodhi Road Complex, which was alloted to (A7) Virender Arora, who is none other than the son of (A3) D.D.Arora (since expired), who was also working as Additional Private Secretary to (A1) Smt.Sheila Dixit (since expired), who was UDM, however this aspect has been admitted by both the parties, even then it is proved by PW30, whose testimony has gone unchallenged in this aspect. (A7) Virender Arora had moved an application to the UDM which is Ex.PW37/C praying that he was an unemployed graduate living in Delhi, he has not been able to secure any suitable employment and he had a talent to do some business and for that purpose he RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 100 of 227 101 requests that a shop may be allotted to him in Lodhi Road Complex. It was also written in the said application that he understood that a shop no.11, Lodhi Road Complex Market was lying vacant which may be allotted to him. Surprisingly, on the same day on getting the said application, the then UDM (A1) writes "as he is an unemployed graduate the shop may be allotted". The said letter has been proved by PW37 Sh.Mahesh Arora, who was working as Dy. Director Marketing at the relevant time. He stated after seeing the application dated 23.01.92 that the same was put up before him through Director of Estates, as there was an order of the then UDM (A1) and his initials are at point A on the said application, which he marked to AD (MarketI). The relevant letter / noting is reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 101 of 227 102
103. Thereafter, there is a relevant note again proved by PW 37 Mahesh Arora regarding the allotment of shop no.11 to Virender Arora (A7) and at page no.1 of noting file, he stated that same is in his handwriting dated 03.02.92, the same bears his signatures at point A and noting is Ex.PW37/A. He had marked this file to the Directorate of Estates. The file again came to him on 05.02.92 from Director of Estates with the directions of Joint Secretary (Housing) RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 102 of 227 103 for issuing order as per prescribed terms. He further marked this file to Assistant Director (MarketI). His initials are at point B. He further deposed that the file again came to him on 12.02.92 from AD (MarketI), as he had examined the documents submitted by Virender Arora (A7). His signatures are at point C and he had further approved the noting dated 12.02.92 of AD (MarketI). He also stated after seeing note at page no.5 of the file, which is regarding submission of licence fee for the aforesaid shop that the said note was put up by AD (Market) and same bears his signatures at point A and is Ex.PW37/B. He also proved the allotment letter dated 10.02.92 issued under his signatures dated 05.02.92 to Virender Arora (A7) at point A and same is Ex.PW37/D. He was further shown an application addressed to Dy. Director Estates, as he was then, was written by A7 on 11.02.92. The said application was put up before him and he had marked the same to AD (MarketI). Same bears his signatures at point A and is Ex.PW37/E. A further note has been proved by PW36 Mrs. Kiran Chadha after seeing the file mark D3 Ex.PW2/4 pertaining to allotment of shop no.11 to Virender Arora (A7) at Lodhi Road Complex Market, Delhi that as per approval of UDM a note was put up on 03.02.92 by Marketing Section indicating that as per L&DO confirmation shops are RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 103 of 227 104 available from S.No.7 to 12 at Lodhi Road Complex and may be allotted as per orders of UDM. The note was put up by DDM on 03.02.92 indicating that shop no.11 may be allotted to the applicant for implementation of the orders of UDM. DDM put up to him on 03.02.92 and he put his signatures at point X1 and is Ex.PW36/E. The relevant notings pertaining to the allotment of shop no.11 in the LRC complex to A7 are reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 104 of 227 105 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 105 of 227 106 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 106 of 227 107
104. Though, (A8) Smt.Gopi Lala is dead, but the allotment pertaining to her is most relevant and is being discussed, as she was no other than the mother of (A2) Rajan S.Lala, who was also working at the relevant time as Additional Private Secretary to the then UDM i.e. (A1), which fact has also not been disputed and the same has also been proved by PW30 Sh. Harcharanjit Singh. The allotment of shop to Smt.Gopi Lala appears to be an interesting story. The same commences from a letter dated NIL placed on the file which has not been proved by the prosecution in which she had written to the UDM (A1) that her husband was a retired government employee, she was unable to meet both ends meet with meager pension and had no other source of income, so she may be allotted a shop at Lodhi Road Complex on rental basis. Alongwith that she had a very strong recommendation letter written by Sh.Dilip Singh Bhuria(the then Member of Parliament). The said letter is Ex.PW39/C and is reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 107 of 227 108 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 108 of 227 109
105. Though the said letter has not been properly proved by the prosecution, as the same is proved by PW39 Sh.M.L.Sharma, who is GEQD Expert from Shimla. He stated that he had received the said letter for examination of the disputed signatures and notings appended on the said letter alongwith the admitted handwriting and signatures of (A1) and (A2) for comparison. In any case, the matter of proof with regard to any document or with regard to any fact is that it should be proved by a person who had either heard or seen the same or was himself physically present at the time of particular fact taking place and the second hand knowledge of the person with regard to the same would be a hearsay piece of evidence and in that case it cannot be said that person was having first hand knowledge of the fact, as he would be gathering his information from other person and this information which he would be gathering from that particular person, the authenticity of the same depends upon the veracity, objectivity or observational sensitivity of the said person as also the fact, whether the said person was also in a position to observe the said fact or was suffering from any observational error(s) or that his objectivity was even otherwise questionable being biased or for other reason. Similarly, in the case of documents, the one who is the author of the said document is trusted to prove the said document as a primary RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 109 of 227 110 witness or in the alternative some other person who had seen the said person executing the said document or any other person who is acquainted with the signatures and handwriting of the said person can also prove the said document provided he has worked with the said person closely, so as to rule out any errors in the testimony of the said person .
106. In the present case, PW39 Sh.M.L.Sharma, could not have proved the said documents, as he had only received the said documents during official course of business from the CBI, but the authenticity of the same has been proved by A2, as he in his statement u/S 313 Cr.P.C has categorically admitted that he has nothing to do with the allotment of shop to his mother. The same was made only on the recommendation of Member of Parliament. In view of the said answer given by A2 in his statement u/S 313 Cr.P.C, the authenticity of the said letter is established by subsequent confirmation of facts. Therefore, the said letter is held to be proved as it rules out any foul play with regard to authenticity of the same.
107. Even otherwise same is confirmed by note ExPW35/DA dated 22.09.94 made by G.B.Singh DB(O&M) which is noted as under:
"2. Smt. Gopi was sanctioned shop in Lodhi Road Complex Market by Hon'ble UDM in December, RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 110 of 227 111 1991 on the recommendations of Sh. Dilip Singh Bhuria, Member of Parliament on the ground that her husband was a pensioner and with the meagre pension she was not able to meet both ends meet. In compliance of the sanction of the UDM, Smt. Gopi was allotted Shop No. 12, Lodhi Road Complex Market on 13.01.92 which she accepted and occupied on 24.01.92."
108. In the said note there is also mention that the shop to Smt. Gopi was given on the recommendation of Sh. Dilip Singh Bhuria, Member of Parliament on the ground that her husband was a pensioner and with the meagre pension and she was unable to meet both ends meet. Therefore authenticity of the said letter ExPW35/DA has been duly established. Therefore same is duly admissible.
109. Thereafter, the UDM on 30.12.91 replies to Sh. Dilip Singh Bhuria, who was also a Member of Parliament and Chairman, House Committee, Lok Sabha, intimating him that a shop had been alloted to Smt.Gopi at Lodhi Road Complex Market on rental basis. The said letter is Ex.PW39/D and Ex.PW39/D and Ex.PW35/DA are reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 111 of 227 112 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 112 of 227 113 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 113 of 227 114
110. A very strong recommendation letter had been written by Sh. Dilip Singh Bhuria ( the then Member of Parliament) in which he had recommended that he knew the applicant and her family personally and he strongly feels that she deserves to be helped and he shall be grateful if UDM could kindly order the allotment of a shop at Lodhi Road Complex Market on rental basis to the applicant as a special case and the UDM obliged and wrote on the said letter itself on 25.12.91 "May be allotted" and the said letter was marked to DEII. The writing of Smt.Sheila Kaul (A1) was encircled at Q4 on Ex.PW39/C and those attributed allegedly to A2 was encircled as Q4/1. The said letter was sent for forensic opinion to the Handwriting Expert, who after comparison of the admitted handwriting and signatures with the specimen and questioned handwriting and signatures of A1 came to the conclusion that portion Q4 was written by one and the same person i.e. A1 in his report Ex.PW39/E. Similarly, the same expert PW39 again gave positive opinion that portion Q4/1 was written by the same person (which pertains to A2) which was also compared with the admitted and specimen signatures and handwritings of A2 alongwith his questioned handwriting and signatures and after scientific comparison he gave the opinion that the portion Q4/1 was written by A2. The said report was not given by a single person. The documents were examined by two different persons separately i.e. RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 114 of 227 115 Sh.Subhashish Dey, Government Examiner of Questioned Documents and Sh.M.L.Sharma, who was posted as Dy. Government Examiner of Questioned Documents, who also proved the said opinion. The opinion of two examiners/experts converges to the same opinion. Therefore, the errors which could have crept in during the examination of one examiner / expert due to various reasons are ruled out. Nothing material has come out in his cross examination.
111. The relevant notings pertaining to the allotment of a shop to Smt. Gopi has been proved by PW36 Ms.Kiran Chadha. She has stated after seeing the file D2 which is Ex.PW2/3 that it pertains to the allotment of a shop to Smt.Gopi out of Lodhi Road Complex Market, under the control of L&DO. L&DO was requested to let them know if any shop was available for such purpose. L&DO confirmed availability of shops S.No.7 to 12 at Lodhi Road Complex, Delhi. Accordingly, the Marketing Division put up a note that shop is available and offer of allotment may be made to Smt.Gopi as per orders of UDM with the approval of AS(W). The note of Marketing Division dated 08.01.92 is marked as X1 and it was forwarded to her for obtaining approval of AS(W). Her signatures are at point X2 and same is Ex.PW36/D. She further marked the file to AS(W) who approved for allotment of shop on 08.01.92 and she identified the signatures of Sh.C.D.Tripathi at point X3. The relevant notings are reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 115 of 227 116 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 116 of 227 117 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 117 of 227 118
112. Thereafter, Smt.Gopi was informed that she had been allotted a shop no.12 at LRC Complex, Delhi vide letter dated 13.01.92. Pursuant thereto she wrote a letter dated 16.01.92 to Dy. Director (M), Directorate of Estates Ex.PW24/B vide which she submitted the relevant documents as required. Thereafter, indemnity bond Ex.PW24/A was submitted by her alongwith other documents.
113. Thereafter, it so transpired that she wrote another letter dated 21.09.94 to the Directorate of Estates, Nirman Bhawan, New Delhi stating that though she had been alloted a shop no.12 at LRC Market Complex, but she was 71 years of age and was a patient of diabetes mellitus and osteoarthiritis. She had unfortunately lost her husband and due to her ill health and death of her husband, she is unable to work and at the same time she was in dire need of livelihood. Accordingly, as per Indian Succession Act, the rights of the grandmother can be transferred to the grand child. Therefore, she requested that the above shop may be regularized in the name of her grand son Deepak Kumar, who is son of (A2). The said letter has not been exhibited, therefore the same is not being reproduced.
114. Immediately thereafter, next round of notings RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 118 of 227 119 started. PW35 Sh.Sansar Pattanayak has deposed that the file D2 Ex.PW2/3 was put up before him on 23.09.94 as there was a request from Smt.Gopi Lala, allottee of shop no.12, Lodhi Road Complex Market, whereby she had informed that her husband had expired last month and she was 71 years of age and shop may be regularized in the name of her grandson Deepak Kumar. The case was processed by Sh.G.B.Singh, the then DD (O&M) on 22.09.94 vide his note. He stated that a shop can be regularized in the name of applicant if he/she is a widow/son or unmarried daughter of deceased allottee. It was further recorded by him that there was precedence of regularization of shop in the joint names of her grand son and son of the deceased allottee. The case was put up for regularization in the name of Sh.Deepak Kumar, grandson of Smt.Gopi Lala keeping in view that she had lost her husband last month, if any relief has to be granted, it will have to be with the approval of UDM who is vested with the power to relax the rules. He had recommended the case vide his note dated 23.09.94 which bears his signatures at point A and note is Mark X1 and same is Ex.PW35/B. He further deposed that case was put up through DEI and was approved by Smt.Sheila Kaul (A1), the then UDM on 06.09.94. The file came back RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 119 of 227 120 through DEI on 26.09.94 from UDM Office which was marked by DEI to DD (OM) on 02.11.94. A draft regularization letter was put up on 04.11.94 by Sh.G.B.Singh, DD (OM) which was seen and signed by him on 04.11.94 and returned to DD (OM). His signatures are at point A. The note dated 22.09.94 made by Sh.G.B.Singh, DD (O&M) was also put in the cross examination of said witness by Ld. Counsel for A1 and A2.
The same is also proved as Ex.PW35/DA. The relevant
notings are reproduced as under:
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 120 of 227
121
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 121 of 227
122
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 122 of 227
123
115. It appears that after the transfer of said shop in the name of Sh.Deepak Kumar, grand son of Smt.Gopi Lala and son of A2, a licence deed was executed which is Ex.PW17/A on 13.12.94. The said Deepak also executed an indemnity bond which is Ex.PW18/A.
116. Regarding the allotment of shop to (A10) Sant Lal Yadav. The said Sant Lal Yadav had also written a letter to UDM dated 08.01.92, which was not been proved, for allotment of a shop either in Gole Market / B.K.S. Marg or Lodhi Complex on payment of monthly licence fee on the ground that he was a handicapped person i.e. without halfleg and on other leg three fingers were missing, he had no means of livelihood and prayed that the shop be alloted to him in his name. The same was allotted by A1 on 28.02.92. The relevant notings pertaining to the allotment of shop no.8, LRC Complex, in his name has been proved by PW37 Sh.Mahesh Arora, who after seeing the file (D4) Ex.PW2/5 stated that the file was put up before him on 19.10.92 by AD (Market) as there was an order dated 28.02.92 of UDM Smt. Sheila Kaul (A1) for allotment of shop after shop nos. 7 to 10 Lodhi Road Complex, were placed at the disposal of Directorate of Estates by L&DO. As there was a request for allotment of shops serially by AD (Market), he approved the same on 19.10.92 which bears his RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 123 of 227 124 signatures at point A on page1 of the file. The noting of AD (Market) is Ex.PW37/G. He further marked the file to AD (Market). The said file was again put up before him on 19.10.92 by AD (Market) for issuance of offer of the allotment letter for shop no.8, LR Complex, C1 to S.L.Yadav (A10) and his signatures are at point B and he further marked the same to Directorate of Estates. He further stated that file was again put up before him on 13.02.96 vide noting at page5 by Sh.P.Bhardwaj, AD (Market). This noting was for the purpose of intimating the applicant about the licence fee, through a letter. His signatures are at point A and same is Ex.PW37/H. The offer of allotment letter dated 19/26.10.92 to Sant Lal Yadav (A10) bears his signatures at point A and is Ex.PW37/I. The relevant letters / notings are reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 124 of 227 125 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 125 of 227 126 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 126 of 227 127
117. The said allottee executed an indemnity bond after allotment which is Ex.PW23/A and the licence deed is Ex.PW5/A.
118. Regarding the allotment of shop no.7 to (A12)Sanjeev Saluja in the Lodhi Road Complex Market, New Delhi. The relevant notings regarding the said allotment has not been proved, but the accused has not disputed in his statement u/S 313 Cr.P.C that he was allotted a shop no.7 at LR Complex Market, rather the prosecution has proved one reminder letter dated 12.10.92 Ex.PW15/A, reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 127 of 227 128 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 128 of 227 129
119. Vide said reminder, this accused writes to the Secretary, Ministry of UD, Nirman Bhawan, New Delhi that he had submitted a similar application for allotment of shop in L.R. complex sometime in Feburary/March 1992 and same may be considered sympathetically. Thereafter, there is another letter dated 20.10.92 written by this accused to Dy. Director, Ministry of UD (Marketing), Govt. of India, N.Delhi, whereby he acknowledged and accepted the shop no.7, Lodhi Road Complex and he also submitted the relevant documents. The licence deed executed with regard to the allotment of said shop is Ex.PW7/A, the indemnity bond is Ex.PW15/D and affidavit is Ex.PW15/E and the undertaking is Ex.PW15/F. So, it is not in dispute that he was allotted shop no.7 in the said LR Complex. The same is otherwise also proved by noting in the file (D22) Ex.PW32/A proved by PW32 Sh. K.Dharmarajan. It is also admitted case of this accused that he never participated in a competitive tender process or auction. Therefore, the allotment made to him was also made by the UDM by exercising power under exception clause to OM of 1979.
120. Regarding the allotment of shops in the same complex to Ms. N.Lalitha and Ms. Tara Choudhary, the same are not being discussed as both, the UDM who alloted the said shops i.e. A1 and the allottee (A11)Ms.N.Lalitha are dead and (A13) Ms.Tara Choudhary is a Proclaimed Offender.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 129 of 227
130
121. The defence of the accused persons is that, as per the OM No.17017/4/77W2 issued by the Government of India, Ministry of Works & Housing dated 24.03.79 Ex.PW4/B2, which OM was with regard to policy to be adopted for development and construction of shopping centers in various government colonies in Delhi, clause2 of the said OM is the general rule whereas clause3 is the exception thereto vide which Minister had the discretion to allot the shops by exercising exception clause, which reads as under
2. Keeping these factors in view, the general question of development and construction of shopping centres in various Govt. colonies and Community Centre Complexes has been considered in consultation with Lands Division and Finance Division and it has been decided that the following proceeding should be followed in the matter of development/construction/management of shopping centres in various Govt. colonies and Community Centre Complexes / Commercial Centres in the land under the control of the Central Government :
(1) Construction of Convenient/Local Shopping Centres:
(a) Sanctioned Schemes: Govt. have RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 130 of 227 131 sanctioned construction of one Convenient Shopping Centre each in BadarpurMehrauli Road area and Sadiq Nagar; the project estimate for construction of 15,300 houses in Delhi already sanctioned, also provides for construction of Convenient/Local Shopping Centres in various colonies where quarters would be constructed. In these cases, the construction would be undertaken by the CPWD and, thereafter, the shops would be sold by auction by the Land and Development Officer, after fixing minimum reserve price in consultation with the Finance Division.
3. While the above would be the general policy to be adopted in future, exceptions may be made if the circumstances so warrant.
122. They have also relied upon Clause 3 (a)(i) and the exception clause 12 of the Manual of Office Procedure Ex.PW4/B3 regarding management of Central Government Markets in Delhi/New Delhi, revised upto February 1, 1992 issued by the Directorate of Estates, which are also reproduced as under
3.(a)(i) All vacancies shall be filled, as a rule, by inviting tenders from the public.
12. Relaxation of Rules RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 131 of 227 132 The Government may, for reasons to be recorded in writing, relax all or any of the provisions of the rules/instructions governing the policy of allotment, regularisation, restoration of shops etc., in Central Government Markets managed by the Directorate of Estates.
123. It was also argued that as per the Manual of Office Procedure regarding management of Central Government Markets in Delhi/New Delhi, revised upto February 1, 1992 issued by the Directorate of Estates, the Minister was fully competent to make exceptions by recording the reasons in writing and in all the cases there were cogent reasons for exercising the said discretion, as in the case of (A5) Asha Yadav, who was unemployed female graduate, similarly (A
7) Virender Arora was also unemployed graduate youth without any livelihood and (A8) Smt.Gopi (since expired) was an old lady whose husband was a retiree and she had also no means of livelihood and similarly allottee (A10) Sant Lal Yadav was a handicapped person and (A12) RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 132 of 227 133 Sanjeev Saluja was unemployed graduate. Therefore, it is stated that the UDM i.e. A1 had exercised the discretion in view of the Rule 12 of the Manual of Office Procedure of year 1992 as well as Clause 3 of the OM of 1979 and the said discretion was exercised in a valid manner after considering each case on merits. It is also argued that said discretion had also been exercised earlier in the year 1989 by the then UDM, who had similarly alloted 15 shops in different markets situated in various government colonies to different people on the basis of abovementioned OM/Manual. Therefore, the said discretion had also been exercised in a proper manner and no fault can be found in the same.
124. Further, Ld. Defence counsels have relied upon noting Ex.PW14/A. In the said note, PW14 Sh.G.V.Krishna Rau, who was working at the relevant time as Land & Development Officer had made the following noting, which is reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 133 of 227 134 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 134 of 227 135 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 135 of 227 136 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 136 of 227 137 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 137 of 227 138 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 138 of 227 139 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 139 of 227 140
125. In the said detailed note, he has stated that it was decided in the year 1979 that in the shopping centres constructed in newly constructed Central Government Colonies, the shops etc. be disposed off by the L&DO through an open public auction, but the same could not be done due to very high reserve price. Meanwhile, there was also a proposal for transferring these markets to the Local Bodies, but the same also could not materialize, therefore there was a move for refixation of the reserve price and in the year 1989, some shops were disposed off on licence fee basis on the recommendations of the then UDM. He further noted that ever since 1991, the file was moving for refixation of reserve price. Thereafter, there is another noting made by Sh.K.Dharmarajan who was working as Joint Secretary in the Ministry of UD at the relevant time. The said note is Ex.PW32/A and is reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 140 of 227 141 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 141 of 227 142 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 142 of 227 143 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 143 of 227 144 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 144 of 227 145
126. In the said noting he also states that as per the OM of year 1979 Ex.PW4/B2, the shops after construction had to be sold by auction by L&DO after fixing the minimum reserve price in consultation with Finance Division. According to this policy L&DO had held two auctions in August, 1987 but there was no response to these auctions. This was mainly on account of the reserve price being very high. He has also stated in the note that in the year 1989, the then UDM had alloted 15 shops to individuals on licence fee basis as per the exception clause 3 of the OM of year 1979. There in the same note he had also recorded that allotments on licence basis was not in conformity with the existing orders of Government laying down the policy for allotment of such shops. The justification for selling shops on auction was to ensure that Government gets the best price for its land and property and that the offer is open to the public for any person to apply and the allotment on a licence fee basis results in loss of revenue to Government and hence a departure of policy. He further noted that the allotment of shops on licence fee basis without calling for applications from the public and giving public notice is likely to be questioned at a later date as being improper since the manner of selection of the applicants is not transparent and open to the public and not in keeping with the policy RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 145 of 227 146 guidelines of the Government.
127. He has stated in his testimony that the Secretary UD recorded a note on the note written by him Ex.PW32/A dated 01.05.92. Regarding the noting thereon " these shops should be primarily to serve the interest of the people living in the colonies, if by getting the the shop by auction the individual opens a shop for items other than need of the people, how are we tackling it". Thereafter on the said noting made by the Secretary UD he changed his note and then recorded a note dated 01.06.92 Ex.PW32/B which is also reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 146 of 227 147 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 147 of 227 148 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 148 of 227 149 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 149 of 227 150
128. that " those shops which have good market value should be put on auction basis while those shops which are meant primarily for serving government colonies should be on licence basis as suggested by Secretary in his note dated 04.05.92 on page 13 of the file". On the basis of the note by the Secretary and his note referred above, Smt.Sheila Dixit (A1), the then UDM recorded a note dated 18.06.92 " the shops at Lodhi Road Complex Market are primarily meant to serve the government colony at Lodhi Road Complex and hence should be continued to be given on licence fee basis".
129. In the above note Ex.PW32/A dated 01.05.92 there is a mention of allotment in favour of Asha Yadav, Smt.Gopi and Virender Arora on para 4 of the said note.
130. Ld. Defence counsels have also relied upon the testimony of PW41 Sh.R.Vishwanathan, who at the relevant time was working as Desk Officer in the Ministry of UD. He has deposed that he had prepared various notes in the file (D10) from page 2 to 21/C of this file and his signatures are appearing on these pages and the note on page6 is already Ex.PW14/A1, but the same does not bears his signatures. The notes on page no. 2 to 5 also bears his signatures and same are collectively Ex.PW41/A. The same are reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 150 of 227 151 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 151 of 227 152
131. He has also proved other notings made by him on the said file (D10) on page no.17 to 19 which are collectively Ex.PW41/B, but the same are not being reproduced under , as the same are not much relevant to the controversy in issue. He has further deposed in his examination in chief that shops in government colonies were also allotted to various persons including refugees in the year 19511952 by the government on licence basis. The monthly licence fee was very nominal, so a decision was taken in 1979 to allot the shops on the basis of auctions to the highest bidders to avoid loss of revenue to the government and reserve price was also fixed for various colonies. Somehow, the auction procedure could not materialize for want of offers and bidders. Therefore, a decision was taken to transfer all the shops in government colonies to the local bodies. However, on the advice of finance division, the cost of land and construction was to be recovered from the local bodies, as a consideration for transfer.
132. The local bodies did not accept the offer for transfer because the transfer price was very high and they did not had the resources to pay the price. He has further deposed that for a decade or so, there was no review of the policy. In the meantime, some shops were alloted to individuals by the then Minister of UD in RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 152 of 227 153 1989 on licence basis. Again, in 1991, some representations were received from some individuals for allotment of shops. The then UDM wanted this issue to be sorted out and the file came to him for examination. The then Joint Secretary of UD Mr.Dharmarajan, had recorded in his note dated 01.05.1992 at page14 that it was not proper to allot the shops on licence basis, unless there were highly justified grounds for doing so, otherwise the proposal to allot shops on licence basis was likely to invite severe criticism and also charges of bias and discrimination. So, he was not in favour of allotment of shops to individuals on licence basis. When the file came to him, he had condensed the facts in his note, largely based upon the views of the then Joint Secretary. Thereafter, some shops were alloted to a few individuals on licence basis on the orders of the then UDM Smt. Sheila Kaul (A1).
133. Relying upon the above notings, Ld.defence counsels have argued that the shops in question were lying vacant for a long time and no bidder had come forward for auction due to high reserve price and most of the shops were lying in a dilapidated condition requiring extensive repairs on behalf of CPWD. Since, the process of reserve price was under consideration, therefore (A1) Sheila Kaul was fully justified in making allotment of shops to accused persons in the present case. In fact, such a discretion had already been exercised by the then UDM in year 1989, as per RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 153 of 227 154 which 15 shops were alloted to different persons, as per the exception clause3 of the OM dated 24.03.79. Therefore, it is stated that there is nothing wrong in discretion exercised by A1 Smt. Sheila Kaul.
134. The Ld. defence counsels have also relied upon the crossexamination of various witnesses examined by the prosecution in support of their contention to prove that the discretion in the present case had been validly exercised. For instance, PW14 Sh.G.V.Krishna Rau has stated in his cross examination that as per his note dated 20.04.92 Ex.PW14/A, the shops could not be auctioned on account of reserve price being high. Even after the reserve price was reduced by 50%, the shops still could not be auctioned for want of bidders. He also stated in his cross examination that he had mentioned in his aforesaid note that even after the shops could not be disposed off by auction after the reduction of reserve price and the efforts were being made to rationalize the fixation of the reserve price. In the meanwhile, the then UDM Ms.Mohsina Kidwai ordered for allotment of about 15 shops on licence fee basis. He admitted that it was correct that even during AprilMay 1994, there was no clear cut policy for disposal of shops that were lying vacant. He also admitted it to be correct that there was no revised reserve price fixed for the shops that were lying vacant and to dispose off these shops by auction, as RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 154 of 227 155 the stage has not come till then as to the modalities for the auction of such shops.
135. Similarly, PW32 Sh. K.Dharmarajan in his cross examination has admitted that it was correct that the Manual of Office Procedure of 1979 and 1992 relating to management of government shops contains provisions for exceptions in the general rules whereby a Minister had the power to allot shops in appropriate cases by relaxing rules contained in the Office Manual Procedure. He also admitted that it was correct that earlier in respect of the vacant shops, the same were put to auction and there were no bidders and as such, the shops remained undisposed off. Thereafter, the reserve price was reduced to 50% and still there were no bidders in the auction for disposal of shops. He also admitted that it was correct that earlier the vacant shops were alloted by the predecessor of Smt.Sheila Kaul in 1989 on licence fee basis. The allotments in the present case were referred to the Finance Division regarding the financial aspects of disposal of the shops. The allotments made as referred to the Finance Division on economic licence fee basis were permissible under exception to the Manual of Office Procedure as recorded by the Finance Division and he has recorded in his note dated 01.05.92 Ex.PW32/A that the widows and handicapped persons were also in the category for use of exceptions to the general rules for allotment of shops.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 155 of 227
156
136. He also admitted that it was correct that exceptions could be made under the exception clause12 of the manual 1992 for exercise of discretion in special circumstance apart from the allotment to widows and handicapped and Mr.Bhargava was the then Secretary in the Ministry of UD and he had put up his above note to him. The Secretary (UD) recorded a note thereon that "these shops should be primarily to serve the interest of the people living in the colonies if by getting the shop by auction the individual opens a shop for items other than need of the people, how are we tackling it". He further deposed in the cross examination that on the basis of the note by the Secretary and his note, Smt. Sheila Kaul recorded a note dated 18.06.92 that "the shops at Lodhi Road Complex Market are primarily meant to serve the government colony at Lodhi Road Complex and hence should be continued to be given on licence fee basis". He also admitted that in his note dated 01.06.92 Ex.PW32/B, he had recorded that " it was decided that till he time final decision is taken in the matter, the shops in question would continue to be alloted on leave and licence basis." He also admitted that the shops were lying vacant for a long time for the reason that the reserve price was so high and as such there was a loss of revenue to the Government.
137. Similarly, PW35 Sh.Sansar Pattanayak in his cross RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 156 of 227 157 examination has admitted that in the revised instructions as contained in the Manual of 1992, there is a provision for relaxing any or all the rules contained in the above Manual. It was also correct that the reasons which prevail on the Minister for allotment of shop are mentioned in the application itself. He also deposed that he had gone through the note of Mr. Girish Bhandari and as per the said note, the reserve price for the purpose of auction or inviting tenders was not finalized till then. It was also correct that the matter was examined by Sh.Girish Bhandari, Joint Secretarycum Financial Advisor vide his note dated 09.05.94 which was also examined by Sh.N.P.Singh, the then Addl.Secretary vide his note dated 11.05.94 wherein it was specifically mentioned that he has also considered the views of Finance Division with regard to allotment of shops on economic licence fee basis and it is also correct that the Manual of 1992 and other Manuals relating to the allotment of shops. He also admitted that it was correct that there were no specific rules dealing with the transfer of the shop from one allottee to his family members.
138. PW37 Sh.Mahesh Arora has also stated in his cross examination that UDM was empowered to make allotments by relaxing rules and such allotments used to be made by the previous Ministers also. There was no provision for calling tenders for allotment of shops during his tenure.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 157 of 227
158
139. PW41 Sh.R.Vishwanathan has also admitted in his cross examination that it was correct that there were no bidders in the earlier auction due to reserve price being very high and the same has been recorded in his note Ex.PW41/D dated 18.06.93 and it was also correct that modalities for the auction were not finalized till the time he was holding the charge. He also admitted that it was correct that regret letters were sent to various VIPs, who recommended allotments, as the allotments did not fall under the exception clause. The Local bodes to whom the shops were proposed to be transferred refused to accept because of the cost of the shops relating to such transfers. He also admitted that it was correct that some of the shops including some shops at Lodhi Road Complex had been lying vacant for long, as there were no bidders on the reserve price fixed by the government.
140. PW43 Sh.P.C.Sharma, IO of the case, has also admitted in his cross examination that it was correct that it was revealed during his investigations that the attempts to dispose off the shops earlier failed because of high reserve price for auction / inviting tenders. He also admitted that it was correct that statement of Harcharanjit Singh reveals that five shops were given on licence fee basis by the then Minister Sh.Abdul Gaffar in 1986 and 18 shops were allotted on licence fee basis by the then Minister Mrs. Mohsina Kidwai and thereafter 10 shops were allotted by Smt. RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 158 of 227 159 Sheila Kaul on licence fee basis.
141. Based on the cross examination of the abovesaid prosecution witnesses, Ld. Defence counsels have argued that what kind of impropriety or sin A1 had done, as the shops in question were lying vacant for 1015 years which was rather causing loss to the government as the shops required extensive repair, no bidder was coming forward due to very high reserve price and even the local bodies were also not ready to get the said shops transferred, as they were unable to bear the transfer charges which was on the higher side. He has also argued that the previous UDM in the year 1986 and 1989 had exercised the exception clause3 as per the OM of 1979 and had alloted 15 shops to different persons and in the present case also the said exception clause had been invoked by A1 after going through the grounds mentioned in a particular case. Even thereafter, the matter was examined by the concerned higher officers of the UD Ministry and it was also having financial concurrence therefore, there was no loss to the State Exchequer. Rather, it was in the interest of the government and it was validly exercised as per clause3 of the OM of 1979 and Manual of Office Procedure regarding management of Central Government Markets in Delhi/New Delhi, revised upto February 1, 1992.
142. Before proceeding further, it would be relevant to find RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 159 of 227 160 out if there is any relationship between A1, A2, A3, A4 and A5 and other allottees to whom the allotment of shops were made in the Lodhi Road Complex MarketI. As discussed above PW30 and other witnesses have stated that A1 was the UDM at that time, whereas A2 and A3 were working as Addl. Private Secretary to the UDM i.e. A1, whereas A4 was the Assistant Private Secretary to the UDM i.e. A1. It is also admitted case of the parties that (A5) Asha Yadav to whom the shop no.6 in the Lodhi Road Complex No.1 was allotted was the daughter of (A4) S.L.Yadav (since expired) who was working as Assistant Private Secretary to A1 and later on the said shop was transferred on the application of Asha Yadav to her mother Smt.Reshma Yadav, who is none other than the wife of (A4) S.L.Yadav. It is also admitted case that (A7) Virender Arora to whom the shop no.11 in LRC Complex1 was allotted was none other than the son of (A3) D.D.Arora (since expired), who was working as Addl.Private Secretary to UDM i.e. A
1. Similarly, Smt. Gopi Lala (since expired) was none other than the mother of (A2) Rajan S.Lala, who was also working as Addl.Private Secretary to UDM i.e. A1 and to whom shop no.12 in LRC Complex was allotted and which later on, on the application of Smt. Gopi was transferred to her grandson Deepak Kumar, i.e son of (A2) Rajan S.Lala. Regarding the allotment of shop no.8 at LRC ComplexI to (A10) S.L.Yadav, no evidence has come that he was RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 160 of 227 161 related to the UDM i.e. A1 or A2, A3 or A4. Though, it was mentioned in the chargesheet that he was brotherinlaw of Sh. Gopinath Yadav who was working as a domestic help at the residence of Smt. Sheila Kaul (A1), however the said fact has not been proved during the evidence. Regarding the allotment made to Smt. N.Lalitha (A11), the same is not being discussed, as she has already expired. However, it has been mentioned in the chargesheet that she was related to one of the personal staff of UDM (A1), Sh. N.V.L.Rao, but no evidence in this regard has also been lead on the record.
143. Regarding accused Sanjiv Saluja to whom shop no.7 at LRC ComplexI was allotted, it is alleged in the chargesheet that he was the son of Dr. Chanchal Saluja, who was posted as CMOcum Incharge of CGHS dispensary at Pandara Road and Dr. Subhash Chandra Saluja, father of Sh. Sanjeev Saluja, was well known plastic surgeon. No evidence has been lead on the record that he was related to A1 or A2, A3 or A4 in any manner. Regarding Smt.Tara Choudhary, she is a Proclaimed Offender, who was the wife of Late Sh. C.M.Choudhary, Member of Parliament and allotment to her was made through Sh.M.Arunachalam, who was working as MOS, UD who made allotment in the present case.
144. From the aforesaid discussion, it is established that all the accused persons to whom the allotments were made in the LRC RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 161 of 227 162 ComplexI, New Delhi had connections with either A1, A2, A3 or A4 barring A10 and A12, as no evidence has been lead on the record of their association with A1, A2, A3 or A4. Though, it was alleged in the chargesheet that A10 was the brotherinlaw of Sh. Gopinath Yadav who was working as a domestic help at the residence of Smt. Sheila Kaul (A1) and A12 was the son of CMO of CGHS dispensary at Pandara Road.
145. Now, in this scenario, it has to be seen whether the discretion which has been exercised by A1 (deceased) in allotting the shops to A5 , thereafter transferred to A6 and A7 and also to A8 (deceased) thereafter transferred to A9 as also A10 and A11 as well as A13 by invoking her powers as per Exception clause3 in the OM of 1979 Ex.PW4/B2 or as per the Clause12 of Manual of Office Procedure regarding the Management of Central Government Markets in Delhi / New Delhi Ex.PW4/B3 revised upto February, 1 1992, has been validly exercised by giving sound reasons for exercising administrative discretion or the same is totally unfair, arbitrary, malafide, violating Article 14 of the Constitution of India.
146. In this regard it would be useful to quote from the Administrative Law, Seventh Edition, S.P.Sathe, Lexis Nexis Butterworths Page(s) 398 and 399 as under Government largesse is public RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 162 of 227 163 property and government cannot dole it out arbitrarily. In the distribution of largesse, such as a contract, advertisement, licence, allotment of government land or a privilege, the discretion must be exercised in public interest and in accordance with the Constitution. Arbitrary disposal of largesse violates art 14. All people must have equal opportunity of being considered for such largesse and there should be neither any favouritism nor nepotism in its allotment. Although the government is free to decide whom to allot largesse to, unlike a private person, it cannot allot the largesse as it likes.
Discretion in this regard must be so used as to give equal opportunities to all eligible persons to compete for it.
The State can of course decide the criteria of eligibility. For example, it may decide to give certain types of benefits only to co-operative societies or to give preferential treatment to persons from the weaker sections of society. Where the government RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 163 of 227 164 reserved some units of the Sal forests in favour of new industrial units set up for extraction of Sal oil, without making similar reservation in favour of the old industrial units, the reservation could not be held to be discriminatory. The policy was based on the recommendation of an expert committee, was supposed to step-up production of Sal seed and was not likely to incur financial hardship. Such decisions regarding eligibility must be based on reasonable classification and should not be arbitrary.
However, even if such eligibility criteria are valid, their application to individual persons also comes under judicial scrutiny and the court would strike down a decision if the actual allotment is not in accordance with such criteria of eligibility or is otherwise discriminatory. Blacklisting a contractor from government contracts merely on the ground that his relations, carrying on similar business were defaulters in paying sales tax, was held violative of arts 14 and 19(1)(g) of the Constitution.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 164 of 227
165
In the case of government contracts,
where rules required that such a
contract had to be given to persons
connected with arrack trade, giving it to strangers who had no connection with that trade was held arbitrary. Allotment of petrol pumps to near friends and relations of ministers was held invalid.
Similarly, out-of-turn allotments of houses in Delhi by a minister were held to be discriminatory. Where a contract for bottling of arrack was given to a chosen few without inviting quotations or tenders, the court struck it down.
Similarly, a contract awarded at high rates without floating public tenders, thus causing loss to the public exchequer, was held to be arbitrary and, therefore, void.
Although the government is free to decide who to give an advertisement to, a guideline saying that they may not be given to newspapers that were rabid or abusive, or 'raging fanatical' was held to be vague and therefore could result in discrimination.
In R.D. Shetty Vs International Airport Authority RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 165 of 227 166 (1979) 3 SCC 489, 503; AIR 1979 SC 1628, 1635 Bhagwati J said It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them.
The learned judge further said in (1979) 3 SCC 489, 505 that The Government is still the Government when it acts in the matter of granting largesse and it cannot act arbitrarily. It does not stand in the same position as a private individual.
In M/s Kasturilal Vs Jammu and Kashmir AIR 1980 SC 1992; Also see Sterling Computers Ltd. Vs M&N Publications Ltd. (1993) 1 SCC 445, the Supreme Court once again reiterated the principle that where the government was dealing with the public, whether by way of giving jobs or entering into contract or granting other forms of largesse, it could not act arbitrarily at its sweet will. The limitations on the government's power were two-fold: (i) it must give equal opportunities to all to compete for such a contract or largesse; and (ii) the RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 166 of 227 167 contents of the contract should not be detrimental to the interests of the State. These limitations are applicable with regard to persons or parties with whom it can contract as well as to the terms of the contract.
147. Further, from the various judgments rendered by the Hon'le Supreme Court from time to time, the law in this regard has been crystallized, relevant extract of following judgment is reproduced as under In Chaitanya Kumar and Others Vs. State of Karnataka and Others, (1986) 2 SCC 594 Under the Karnataka Excise(Bottling of Liquor) Rules, as they stood at the relevant time, bottling licences could only be granted to persons already connected with the liquor trade. But neither the advertisement confined its invitation to such persons only, nor the Exise Commissioner took into account that criterion while recommending that 8 persons for the contract. The Exise Commissioner excluded from consideration for the award of the bottling contracts those persons who were eligible for the grant of bottling licences and recommended such person as were not eligible for the grant of bottling licences under the rules. This was an usual, wilful and perverse way of exercising the power of distributing State largesse. Even if the award of the bottling contracts was not at the expense of the exchequer, there could be no question that what was done was the distribution by the State of favours loaded with bounty by way of enabling the recipients of the favours to earn enormous profits. Moreover, the recommendation of the Excise Commissioner to award the bottling contracts to the eight 'chosen' persons was not wholly consistent with the very RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 167 of 227 168 principle on which he had excluded as many as 119 out of 131 applications from consideration. The almost surreptitious manner in which Rule 3 was amended subsequent to the filing of some of the writ petitions also appears to give an indication regarding the anxiety of the Government to favour the chosen ones with the bottling contracts. Even if the notification dated November 23, 1984 containing the draft amendment of Rule 3 was published on November 23, 1984, there was hardly any time for anyone to make any objections since only five days time was given. The so-called policy decision and the principle purported to be enunciated by the Excise Commissioner were a mere pretext designed to eliminate all except the chosen.
Further, in Shivsagar Tiwari Vs. Union of India and Others, (1996)6 SCC 558 it was held as under:-
6. The CBI has since inquired into the matter in some detail and has by now submitted 4 interim reports.
According to the CBI, orders of allotment in respect of the shops/stalls in question were passed by Smt. Shiela Kaul, the then Minister of Urban Development, and "all the 6 shops have been allotted by her to her own relatives/employees/domestic servants of her family members and family friends. She has allotted 2 shops to her 2 gransons, one shop to the maid servant of her son, Sh. Vikram Kaul who is residing in Dubai, one shop to handloom manager of the firm owned by her son-in-law and another shop to a close friend. One shop has been allotted to the nephew of the Minister of State, Sh. P.K.Thungon. While making allotments in respect of stalls, she has allotted most of stalls to the relatives/friends of her personal staff and officials of Dte. of Estates". The CBI has also reported that Smt. Sheila Kaul had made ten different categories of persons as the basis for deciding allotments, but even this categorisation was not RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 168 of 227 169 adhered to while making allotments. The further findings are: (1) "Many other organisations/persons who had also applied for allotment and no reasons, whatsoever, were assigned for non-allotment of shops/stalls to them"; and (2) "At the time of discretionary allotments made by Smt. Shiela Kaul in 1993 and 1994 persons who were relations of her personal staff were considered and allotted shops"
7. In the order dated 19.07.1996 this Court noted that a regular case under Sections 120-B, 420, 468/471 IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988, has been registered against Smt. Shiela Kaul and her Additional Private Secretary Rajan S Lala and Others. The order of that date has also noted about various other steps taken, which include issuance of show cause why allotments of shops/stalls should not be cancelled. It was desired that the notices be served within a week and the Estate Officer, after considering their replies, if any, place a report before the Court within four weeks.
8. Such a report was filed under the affidavit of Sh. Harcharan Jeet Singh, Director of Estates, which was taken up for consideration on 06.09.1996. The affidavit of the Director has stated that from 1994 onwards 52 shops/stalls had been sanctioned by the then Minister of Urban Development(Smt. Shiela Kaul) out of which 7 shops were allotted by Smt. Kaul before she had approved the policy of 1994 and the remaining 45 shops were allotted after the policy of 1994. In the affidavit the gist of objections allotted after the policy of 1994. This court thought it appropriate to give an opportunity of hearing to all these persons before any action was taken. A direction was, therefore, given to the Director to issue individual notices to the 52 persons(wrongly mentioned as 42 in the order) to be personally present in the court or be represented through their counsel on 27 th September. These allottees so appeared either in person or through counsel and they were heard. The sum and substance of the representations of the allottees was that they RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 169 of 227 170 had been given an allotment either because of their being unemployed youths, freedom fighters, handicapped, members of Scheduled Castes/Scheduled Tribes, widow or poverty stricken.
9. Question is whether they were selected in accordance with law, which aspect has its importance because apparently a large number of other persons could as well fall within the categories in question and had applied also. From the report of the CBI it is clear that the allottees had been selected, not by following the tender system, as required by the policy of 1994, but because of their relationship with the Minister or her personal staff, or being employees or friends of such persons. If that be so, the allotments were wholly arbitrary and speak of misuse of power. The all important question is what is required to be done to undo the wrong and how the wrongdoer is to be dealt with within the parameters known to law.
10. It would be apposite in this context to refer to the recent decision of this Court in common cause, a Registered Society v. Union of India, in which one of us(Kuldeep Singh J) reiterated the need to act fairly and justly in the matter of grant of largesses, pointing out that any arbitrary distribution of national wealth would violate the law of land, Mention was made of the judgment in Lucknow Development Authority v. M.K.Gupta, stating that the same approved "misfeasance in public office" as a part of the law of the tort. It was pointed out that public servant become liable in damages for malicious, deliberate or injurious wrongdoing.
148. This is the case in which the allotments of shops / government quarters were set aside by Hon'ble Supreme Court as arbitrary allotments and as per the directions of Hon'ble Supreme Court, the FIR was registered against the accused persons including A1 and A2.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 170 of 227
171
149. The Hon'ble Supreme Court in the following latest case, pertaining to 2G Scam Spectrum held as under: Natural Resources Allocation, IN RE Special Reference No. 1 of 2012, (2012) 10 SCC 1
146. To summarise in the context of the present Reference, it needs to be emphasised that this Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to make them. As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-a-vis other methods of disposal of natural resources. The court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionally of these methods. When questioned, the courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the court would not hesitate in striking it down.
147. Finally, market price, in economics, is an index of the value that a market prescribes to a good. However, this valuation is a function of several dynamic variables: it is a science and not a law. Auction is just one of the several price discovery RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 171 of 227 172 mechanisms. Since multiple variables are involved in such valuations, auction or any other form of competitive bidding, cannot constitute even an economic mandate, much less a constitutional mandate.
148. In our opinion, auction despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources and therefore, every method other than auction cannot be struck down as ultra vires the constitutional mandate.
149. Regard being had to the aforesaid precepts, we have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose; and precious and scarce natural resources are alienated for commercial pursuits of profit maximising private entrepreneurs, adoption of means other than those that are competitive and maximise revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution.
150. There is no doubt in view of the settled law and in view of the judgment of Hon'ble Supreme Court in Shivsagar Tiwari (supra), the allotment of shops made by A1 to various accused persons, who were either related to A1, A2, A3 or A4 or to other persons known to A1, was totally arbitrary, unfair, unreasonable RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 172 of 227 173 and in violation of Article 14 of the Constitution of India. There is no reasonable classification or exercise of discretion in a fair manner, rather it is a case of gross favouritism and nepotism.
Regarding Conspiracy
151. Now it is to be seen whether the acts of allotments of shops to A5 later on transferred to A6, A7, A8 (deceased) later on transferred to A9, A10, A11, A12 and A13 by A1 also attracts criminal liability as per the provisions of PC Act and IPC. In this regard, it would be relevant to point out that all the accused persons at present facing trial namely A2, A5, A7, A10 and A12 have only been charged with the commission of offence(s) punishable u/S 120B IPC r/w Sec.409 IPC and 13(2) r/w Sec.13(1)(c) and 13(1)(d) of PC Act. None of them have been charged for any of the substantive offence(s) under the IPC or PC Act, only A1 was additionally charged for the offence(s) punishable u/S 409 IPC and 13(2) r/w Sec.13(1)(c) and 13(1)(d) of PC Act r/w Sec.120B IPC. However, since A1 has expired, the accused persons who are left facing trial in the present case have only been charged with regard to the conspiracy part. Therefore, it is to be seen whether any conspiracy is made out or inference of conspiracy can be drawn from the evidence and documents available on the record.
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 173 of 227
174
152. Regarding conspiracy part, relevant law was discussed by Hon'ble Supreme Court in the case titled K.R.Purushothaman Vs State of Kerala (2005) 12 Supreme Court Cases 631, relevant extract is reproduced as under:
11.Section 120A IPC defines "criminal conspiracy". According to this Section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G.Barsay V. State of Bombay Subba Rao J., speaking for the Court has said :(SCR p.228)
12. "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."
13. In State V. Nalini it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp.56869, para 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 174 of 227 175 illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."
14. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 175 of 227 176 every one of the conspirators take active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the wellknown rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 176 of 227 177 constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
15. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin V. State of Maharashtra, that: (SCC pp.699700, para 7)
16. "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts.
Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
17. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 177 of 227 178 speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) V. Navjot Sandhu (p.63) as follows:
(SCC pp.69192, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators.
There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.
153. It has been further held in a case 1999 Cri.L.J.3124 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 178 of 227 179 State of Tamil Nadu through Superintendent of Police CBI/SIT Vs Nalini and others WITH T.Suthenthiraraja alias Santhan and others Vs State by DSP, CBI, SIT, Chennai WITh P.Ravichandran and others Vs State by DSP, CBI, SIT, Chennai WITH Robert Payas and others Vs State by DSP, CBI, SIT, Chennai WITH S.Shanmugavadivelu and others Vs State by DSP, CBI, SIT, Chennai WITH S.Nalini and others Vs State by DSP, CBI, SIT, Chennai, as under: "110. The first condition which is almost the opening lock of that provisions is the existence of "reasonable ground to believe" that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement "In reference to their common intention". Under the corresponding provision in the English Law the expression used is "in furtherance of the common object". No doubt, RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 179 of 227 180 the words "in reference to their common intention" are wider than the words used in English Law, (vide Sardar Sardul Singh Caveeshar v. State of Maharashtra, (1964) 2 SCR 378: 1965 (1) Cri.L.J.608: (AIR 1965 SC
682).
154. Regarding A1 and A3, there was definitely conspiracy between them, as A1 was the UDM and A3 was Additional Private Secretary, yet the allotment of shop was made in favour of the son of A3 Sh. Virender Arora merely on moving of an application Ex.PW37/C wherein he has stated that he was an unemployed graduate, therefore a shop be alloted to him and he even stated in the said application that shop no.11 at LRC Complex was lying vacant which can be alloted to him and the UDM did oblige on the same day by allotting the shop in his favour by making endorsement to this effect on 23.01.92 , which is the day of moving the application. The said lightening quick response from the UDM can be elicited only by the one closely known to her, which in this case was A3, who was working as Additional Private Secretary to her. The various notings with regard to the allotment of the shop no.11, which was ultimately alloted to A7 as per his wishes has already been reproduced in the preceding paras and need not be reiterated. Such a quick response of getting the application and RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 180 of 227 181 making the allotment on the same day and also knowing the fact that particular shop was lying vacant and that he should be alloted that particular vacant shop, should not have been possible without the assistance of A3 (since deceased), who was working as Additional Private Secretary to A1. As in this case as discussed above, though the powers were arguably exercised as per the OM of 1979 and Manual of Office Procedure Ex.PW4/B3, but it is also admitted case that as per the said OM and Manual of Office Procedure, the shops had to be either sold by auction or by inviting tenders which was the norm, which was flouted in a blatant manner, A1 in utter violation of these norms made illegal allotments to her favourites, which is most arbitrary and unreasonable and in violation of fair play under Article 14 of Constitution of India. There were millions of other persons similarly situated, who were either unemployed or even below the poverty line, who could have been graced with these allotments, yet there was no public notice or auction neither tender was invited, and the ones from whom the applications were received were belonging to a very elite circle or ring consisting of A1 and her personal staff, no one else was allowed to break that elite circle.
155. Similarly, there was a clear cut conspiracy between A4 and A1 in allotment of shop to his daughter Asha Yadav (A5). Though, she had moved an application on 24.10.91, which has not RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 181 of 227 182 been proved, but it appears from the notings already reproduced as above that her allotment was made on 26.10.91 within two days of moving the application and there was also notings by PW41 R.Vishwanathan that shops had to be disposed off through public auction to the highest bidder, yet shop no.6 at LRC complex was alloted to her. She was not even satisfied with the same. She moved another application Ex.PW33/A on 01.02.92 after the allotment of shop no.6 at LRC complex on a very preposterous ground that number 6 did not suit her numerologically and also that she wanted that the shop be realloted in favour of her mother Smt.Reshma Yadav. No reason has been given in the application, as to why she wanted to get reallotment of the shop in favour of her mother. The only reason probably could be that she developed a cold feet and wanted to get rid off the shop in favour of someone close to her.
156. In view of the notings as reproduced above, it was stated by PW33 Sh.G.B.Singh in detailed note that there was no provision in the Rules for such a transfer and it would also create a bad precedent and they would not be in a position to face the music when they receive a number of other similar requests from the allottees of shops in different markets. He further wrote down that such request cannot be allowed and they may issue regret letter. However, later on other notings were made and vide note RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 182 of 227 183 Ex.PW33/C, it was considered as a via media that a fresh allotment be made in favour of her, which was approved by A1 vide Ex.PW33/D. Such a strange request could not have been met without the actual connivance of A4, who was in a position to influence A1, being Assistant Private Secretary to A1 and A5, is none other than his daughter and even though there was no rule for transfer of shops once allotted in favour of another person except in certain contingencies, yet the same was allowed and the shop was realloted in favour of wife of A4 that too with the approval of A1, so there is a clear cut smell of conspiracy which can be inferred from the acts of A1 and A4 in allotting and reallotting the shop no.6 in favour of A5 and later on transferred to A6 Smt.Reshma Yadav (since discharged).
157. Regarding (A10) Sant Lal Yadav, though it was alleged in the chargesheet that he was the brotherinlaw of one Gopinath Yadav, who was working as a domestic help at the residence of UDM i.e. A1, but no evidence in this regard has been lead on the record. He was also made allotment of shop no.8 at LRC Complex, when he moved application dated 08.01.92, though the said application has not been proved, but from the notings made thereafter with regard to the said application by various officials of the Ministry of UD, it is apparent that the said shop was alloted to him in utter violation of established norms. The said notes RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 183 of 227 184 clearly mentions that the said shop should have been alloted through public auction or by inviting tenders. There is no evidence that he knew A1 or was acquainted to her through his brotherin law Gopinath Yadav, who was working as a domestic help at the residence of A1. Therefore, there was no meeting of mind between A10 and A1 with regard to the conspiracy.
158. Regarding conspiracy between A1 and (A12) Sanjeev Saluja, the actual application which he moved before the UDM i.e. A1 praying for allotment could not be found, as is evident from the noting portion as already reproduced above dated 12.10.92 Ex.PW15/A. He wrote to Secretary (UD) reminding him that he had made a request for allotment of shop in LRC Complex sometime in February/March 1992 and he further requested to consider his case sympathetically, as it is already 8 months since he made the request, as he was an unemployed graduate and was in dire necessity for a place to run his appropriate business. He was ultimately allotted a shop no.7 at LRC Complex1, which is evident from the allotment letter Ex.PW15/B and letter of acceptance is Ex.PW15/C, as also licence deed Ex.PW7/A, indemnity bond Ex.PW15/D and other documents vizaffidavit and undertaking Ex.PW15/E and Ex.PW15/F respectively. Though, it was alleged that his parent were doctors and his mother was CMO in CGHS dispensary, Pandara Road, New Delhi and she was well RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 184 of 227 185 known to A1, but in this regard the said witness PW15 Mrs. Chanchal Saluja has stated in her examinationinchief that she was working in CGHS dispensary, Pandara Road, New Delhi as doctor and her son Sanjeev Saluja (A12) was unemployed graduate and he wished to do some business, therefore had applied for allotment of a shop to the Secretary (UD) and thereafter he was alloted a shop at LRC Complex1.
159. In her cross examination by Ld. Defence counsel for A 12, she stated that neither she nor her son (A12) knew A1 and Sanjeev Saluja (A12) received a letter from Directorate of Estates in June 1997 to vacate the shop in question and he vacated the same in June 1997 itself voluntarily. Though, strong suspicion arises that the said allotment could not have been made without the blessings of A1, but such strong suspicion cannot take the place of proof, which is required to get a positive inference, in the absence of the same, the said inference only remains an unproved inference and does not partake the character of proof. Therefore, there was no meeting of mind or conspiracy between A12 and A1 with regard to allotment of shop.
160. Regarding the conspiracy between A1 and A2 with regard to allotment of shop in favour of Smt.Gopi Lala (A8)(since expired) mother of A2 and later on transferred to Deepak Kumar (A9)(since discharged) son of A2. In view of the notings already RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 185 of 227 186 reproduced above, the story of allotment in favour of Smt.Gopi starts when she writes an undated letter to the UDM i.e. A1(which letter though has not been proved) that her husband was a retired government servant and she was unable to make both ends meet, having meager income and she had no source of income and she requested that she may be alloted a shop at Lodhi Road Complex on rental basis. Later on, it so transpired that on the basis of said emotional appeal in the form of letter, one Member of Parliament Sh. Dilip Singh Bhuria wrote a letter dated 19.12.91 to the UDM vide letter Ex.PW39/C (the said letter has already been reproduced above and its admissibility has also been discussed in the preceding paras) in which Mr. Bhuria stated that " I know the applicant and her family personally and strongly feel that she deserves to be helped. I shall be grateful if you could kindly order the allotment of a shop at Lodhi Road Complex Market on rental basis to her as a special case". From the perusal of the said letter it is apparent that said letter was diarized in the UDM office on 25.12.91 as VIP reference No.4875 and on the very date of receipt of said letter dated 25.12.91, the UDM i.e. A1 obliged by writing "May be allotted". The tone and tenor of the said letter clearly reflects that Mr.D.S.Bhuria was writing that he knew the applicant and the family members personally, so it gives an inference that when he was writing so, he was talking about A2, RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 186 of 227 187 who was working as Additional Private Secretary to A1. The said inference can be safely drawn from the reply written by UDM to Sh.D.S.Bhuria dated 30.12.91, wherein she had informed Mr.Bhuria that she had obliged by allotting a shop to Smt. Gopi (A8) on his recommendations, who was not only a Member of Parliament but also Chairman of House Committee, Lok Sabha. It means that the said person was closely associated with the UDM i.e. A1 with regard to the recommendations of house and shops, being the Chairman of House Committee, Lok Sabha and in that capacity he was definitely in touch with A2, who was Addl.Private Secretary to A1.
161. What is galling is the fact that on the said letter Ex.PW39/C itself, there is an inscription of words DEII. Said letter was sent for forensic evaluation and as per the report of forensic handwriting expert PW39 Sh.M.L.Sharma, it was found that the portion Q4/1 was written by the same person who was the author of the specimen handwritings S1 to S29 and other admitted handwritings submitted to them for comparison. Nothing has come out in his cross examination which could diminish the evidentiary value of the said letter or the notings or inscriptions made thereon. The very inscription and marking of the said letter to DEII by A2 on the letter Ex.PW39/C on the same very day shows that he was personally present / involved in the allotment of shop no.12 at LRC RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 187 of 227 188 Complex1 in favour of his mother. The said allotment could not have been made without his active connivance and collaboration with A1 with whom he was working as Addl.P.S. This inference is further supported by the testimony of PW27 Sh. C.P.Gauniyal, who has deposed that he was working in the office of UDM i.e. A1 and he used to attend the telephone calls of A2 and others and his children were studying in the same school where the children of A2 were studying and they used to met as and when he used to go to fetch his children. As APS, A2 was assigned work of administration. Though, he turned hostile and did not support the case of prosecution fully. In his cross examination by Ld.Public Prosecutor for CBI, he stated that it was correct that his statement was recorded by CBI u/S 161 Cr.P.C and in his said statement he had stated to CBI that all the work relating to allotment of shops / stalls were personally looked after by A2.
162. He was also cross examined on behalf of accused persons and in his cross examination he stated that as Addl.P.S, A 2 was bound to follow the instructions of the Minister and A2 had no independent authority to deal with the allotment of shops and houses. His duty was only to put up the papers before the Minister and to carry out the instructions given to him by the Minister. But, the very statement given by PW27 in his cross examination by Ld.PP that all the work relating to allotment of shops /stalls was RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 188 of 227 189 personally looked after by A2, has not been shattered. It also shows the reason why Mr.Bhuria was writing a letter recommending for allotment of shop in favour of Smt.Gopi (A8), mother of A2 and why the allotment was made on the same day, when the letter was received in the office of UDM i.e. on 25.12.91.
163. The matter did not end here. Vide letter dated 21.09.94 (the said letter has not been proved) Smt. Gopi (A8) (since expired) had written to the Director of Estates, Nirman Bhawan, New Delhi that she is 71 years of age and due to ill health and death of her husband, she desires that the shop be transferred in favour of her grandson Deepak Kumar (A9) (since discharged). As pointed out in the notings reproduced above, vide note Ex.PW35/DA, the same was strongly descented, as it was noted that the case of Smt. Gopi (A8) was not covered as per the Market Instructions and her request for regularization of shop no.12 in favour of her grandson Deepak Kumar can be granted with the approval of UDM, who is vested with the power to relax the rules and UDM i.e. A1 did oblige vide noting dated 26.09.94. The same also could not have been done without the active connivance and collaboration of A2 with A1.
164. The conspiracy of A2 in this matter is also evidence from the file pertaining to allotment of shop no.6 to Asha Yadav (A
5) which is Ex.PW2/2. PW33 Sh.G.B.Singh has proved the RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 189 of 227 190 relevant noting vide which the request of Smt.Asha Yadav (A5) for regularization of shop in favour of her mother was considered, as it was stated in the notings Ex.PW33/A and Ex.PW33/B that the request for change of title is not allowable under Rules and it would lead to a bad precedent. Though, the attention of PW33 was drawn to portion Y to Y on page12 of file (D1) Ex.PW2/2, which he denied to be in the handwriting of A2. Though, no doubt the said handwriting and signature appearing from portion Y to Y should have been sent for forensic opinion, but the same has not been sent for the reasons best known to the prosecution, but at the same time, this Court is not helpless in such a scenario, as it is to be noted that u/S 45 and 47 of the Indian Evidence Act, the Court has to take a view on the opinion of the others, whereas u/S 73 of the Indian Evidence Act, the Court by its own comparison of disputed handwriting with the admitted and specimen handwriting can form its own opinion. The evidence of handwriting is dealt in three sections of the Evidence Act, they are Section 45, 47 and 73. Both, u/s 45 and 47 of the Indian Evidence Act, the evidence is an opinion. In the former case, it is by a scientific comparison and in the later, it is based on the familiarity resulting from frequent observations and experience. In both the cases, the Court is RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 190 of 227 191 required to specify this by such means as are open to conclude that the opinion may be acted upon.
165. Irrespective of opinion of handwriting expert, the Court can compare the disputed handwriting and can come to its own conclusion. Such results of comparison is permissible u/S 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complimentary to each other. The testimony of handwriting expert need not to be corroborated. It is for the Court to see whether such evidence is corroborated either by clear direct evidence or by circumstantial evidence.
166. It is clear that even when the expert opinion is not there, the Court has power to compare the handwritings and decide the matter as held in judgment Murari Lal Vs State of Madhya Pradesh (1980) 1 SCC 704.
167. Though, it is hazardous to do so on the part of the Court to enter into the field of handwriting comparison, but in certain cases where there is a glaring omission on the part of the prosecution and the interest of justice is suffering, then RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 191 of 227 192 the Court cannot sit as a silent spectator and watch from the sidelines. Court has to enter into the sphere by giving its opinion, on careful comparison of the signatures on the said portion Y to Y at page no.12 of file Ex.PW2/2 dated 27.09.94 which is reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 192 of 227 193 RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 193 of 227 194
168. And after comparing the same with the admitted signatures and handwritings of A2, which are appearing on various notings, moreso in his statement u/S 313 Cr.P.C (running into several pages), it is clear that the said signatures have been made by one and the same person. There is no doubt about the same. Moreso, as the authenticity of said official file is not in dispute. It appears that the said noting had been made not only to help A5, who is daughter of his colleague i.e. A4 (since expired), but also to self help, as similar request of transfer/reallotment in the name of his son Deepak Kumar made by his mother Smt.Gopi had been allowed vide noting dated 26.09.94 by the A1, though as per Market Instructions in vogue there was no such prevalent rule for such reallotment / transfer. Therefore, to make the case of his son on better footing, A2 had to and did make a similar noting dated 27.09.94 in the case of Asha Yadav's request for transfer / re allotment in the name of her mother despite there being no rule or procedure for acceding to such a request, as the Rubicon had been crossed in the case of mother of A2, therefore it was crossed again in the case of A5 (Asha Yadav) as A2 and A4 were working for the same Minister. Therefore, A5 could not have been denied the privilege extended to Smt.Gopi Lala (A8),mother of A2. It appears that the same has been done with a design that the case of Smt.Gopi Lala should not be challenged as stand alone and there RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 194 of 227 195 should be another case of similar change of name in favour of some other allottee to have better grounding.
169. From the aforesaid inferential chain of discussion, an inference can safely be drawn that the change of name was only a veil and the real person behind the veil was A2 only, as firstly Smt. Gopi Lala stated she had no source of income in her application for allotment of shop and when the allotment was made, she moved another application that the shop may be realloted in the name of her grandson i.e. Deepak Kumar (A9) son of A2, on the ground that she was old and she had lost her husband and due to her ill health, she was unable to work. Later on as per notings (as reproduced in the preceding paras), it is evident that there was no Rule in the Manual of Office Procedure for reallotment / transfer except in certain exigencies / contingencies, which did not cover the case of Smt. Gopi Lala (A8), yet in blatant violation of norms, shop was transferred in favour of Deepak Kumar (A9) grandson of A8 and son of A2, therefore the only inference which can be drawn in these circumstances, is that it was done by A2 in conspiracy with A1. Therefore, there was a clear cut conspiracy between A1 and A2.
170. Regarding the role of A1 and A5, since (A6) Smt. RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 195 of 227 196 Reshma Yadav has already been discharged, whether it can be said that A5 was also involved in conspiracy which took place between A1 and A4 regarding the allotment of shop in her favour, no evidence has come on the record that there was any meeting of mind or thought between A5 and A1 through A4, as she may be under some sort of impression that A2 who was serving as Additional Private Secretary to UDM i.e. A1 was having power to do so and therefore, she may have requested A4 who was her father, as she was not having any worthwhile job at that time, to get a shop alloted in her favour and she may be under some sort of impression that A4 who was working as Assistant Private Secretary to A1 was having power to do so, that it was a legal act or may be A4 told her to apply for such allotment, as he could pull the threads from behind, being close to A1, either way, it cannot be said that A5 was also part of the conspiracy or confederacy.
171. Similarly, regarding A7, the same explanation would apply. He was also son of A3 and he may have been some sort of impression that A3 was in a position while serving as Additional Private Secretary to UDM i.e. A1 to get the shop alloted in his favour and that it was a legal act. Further, no evidence has come on record that there was any meeting of mind between A1 and A3 or between A7 and A1 with regard to allotment of shop in his RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 196 of 227 197 favour.
172. Similarly, regarding the allotment of shop in favour of A10, no evidence has come on record that he was connected with A1 in any manner. No evidence has come that he was the brother inlaw of Gopinath Yadav who was working as domestic help at the residence of A1. Therefore, there was nothing on record to show that there was meeting of mind between A1 and A10, nor there was any evidence that he had met A1 with regard to the allotment of said shop, rather considering the status of A10, it would have been extremely difficult on his part even to seek an appointment with the UDM i.e. A1.
173. Similarly, adverting to (A12) Sanjeev Saluja, his mother was examined as PW15, who deposed that she does not know A1 and that she had never met A1. Rather, in her cross examination she categorically stated that neither she nor her son knew A1. Therefore, there is no evidence regarding meeting of mind between A1 and A12 as well.
174. There is also an inference of ring of conspiracy between A1, A2, A3 and A4 inter se. As already discussed above with regard to the reallotment of shops in favour of Smt.Reshma Yadav RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 197 of 227 198 on the application of (A5) Asha Yadav on which A2 made a favourable note in violation of Manual of Office Procedure. Further, the licence deed executed by the (A7) Virender Arora Ex.PW16/A has been attested by (A2) Rajan S.Lala as a witness. Similarly, his indemnity bond Ex.PW34/A has also been executed in presence of A2. This also leads to an inference that there was conspiracy between A2 and A3 inter se, as also between A2 and A4, as A2 had recommended the case of reallotment / transfer of shop in favour of Smt. Reshma Yadav (A6), mother of A5 by making a positive noting on the file Ex.PW2/2 vide note dated 27.09.94 which has been reproduced above in para no.167. Therefore, everybody of above was kept in loop and was placated as were bestowed with some bounty due to the magnanimity of A1. Consequently, the inference of complete circle of conspiracy between A1, A2, A3 and A4 can be safely inferred from these acts and circumstances, as A1 was UDM, A2 was Addl.P.S to A1, same was the status of A3 and A4 was the Assistant P.S to A1.
175. Regarding the contention of Ld. Defence counsel Sh.S.P.Minocha for A2 that after the death of A1, A2 cannot be convicted independently for conspiracy, as the offence of criminal conspiracy consist in preagreement between two or more persons to commit a criminal offence irrespective of further consideration RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 198 of 227 199 whether or not those offence(s) have actually been committed. Therefore, he argued that atleast two persons are required to constitute conspiracy and since A1 had died during the trial, therefore A2 cannot be convicted for the offence of conspiracy. The said argument of Ld. defence counsel is without any substance as it has been held in Kannangara Aratchise Dharmasena Vs King (1950) 51 Cr.L.J 1597 (PC) that one conspirator may be tried and convicted in the absence of his companions in crime.
176. Further, it has been held in Para 14 of Bimbadhar Pradhan Vs State of Orissa AIR 1956 Supreme Court 469 as under In this connection the observations of this Court in the case of 'Dalip Singh v. State of Punjab', 1953 SC 364 (367368) (AIR V 40)(G), and of the Federal Court in 'Kapildeo Singh v. The King', 1950 FC 80(81) (AIR V 37)(H), are relevant. It is not essential that more than one person should be convicted of the offence of criminal conspiracy. It is enough if the court is in a position to find that two or more persons were actually concerned in the criminal conspiracy. If the courts below had come to the distinct RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 199 of 227 200 findings that the evidence led on behalf of the prosecution was unreliable, then certainly no conviction could have been based on such evidence and all the accused would have been equally entitled to acquittal.
177. In view of the law laid down in the aforesaid judgment, by same analogy, it would be trite that even after the death of A1 (who died during the trial after framing of charge), A2 can be tried and convicted for the charge of conspiracy, as the evidence clearly suggest A1 and A2 were actually and actively involved in the offence of conspiracy.
178. Now, the question which arises for consideration is that the conspiracy agreement between A1 Smt.Sheila Kaul (deceased), who was UDM at the relevant time and A2 Rajan S.Lala, who was working as Additional Private Secretary to A1 was with regard to which offence(s). All the accused persons who are facing trial in the present case have been charged u/S 120B IPC r/w Sec.409 IPC and 13(2) r/w Sec.13(1)(c) and 13(1)(d) of PC Act and only A1 (deceased) was additionally charged u/S 409 IPC and 13(2) r/w Sec.13(1)(c) and 13(1)(d) of PC Act r/w Sec.120B IPC. Since A1 has already deceased and the proceedings against her RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 200 of 227 201 stands abated, the only charge(s) which remains is with regard to the conspiracy part, as stated above.
Regarding Section 409 IPC
179. Now, adverting to Section 409 IPC. No offence u/S 409 IPC is made out, as there was no entrustment of shop which was allotted to A7, A5 thereafter transferred to A6 (since expired), A8 (since expired) later on transferred to A9 (since discharged), A10, A11 (since expired), A12 and lastly to A13 (who is Proclaimed Offender) upon A1, who was UDM at the relevant time, who had allotted the said shops in favour of the above persons, as A1 was the final authority to allot the shops, but at the same time, it cannot be said that A1 or A2 were having any dominion over the said shops which they dishonestly misappropriated or converted to their own use or disposed off the same in violation of any direction of law prescribing the mode in which the said trust was to be discharged.
180. Perusal of the record reveals that the allotment letter dated 13.01.92 contained in file Ex.PW2/3 (D2) by virtue of which the shop no.12 at LRC Complex, allotted to Smt.Gopi (A8) (since expired), was allotted by Government of India, Directorate of Estates. Similarly, the allotment letter dated 09.01.92 by virtue of RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 201 of 227 202 which Smt. Asha Yadav (A5) was allotted shop no.6 at LRC Complex contained in file (D1) Ex.PW2/2 has also been in the name of Government of India, Directorate of Estates. Similarly, the allotment letter Ex.PW37/D pertaining to allotment of shop no.11 at LRC Complex in favour of (A7) Virender Arora was also made in the name of Government of India, Directorate of Estate and shop no.8 at LRC Complex was allotted in the name of (A10) Sant Lal Yadav which is Ex.PW37/I, has also been made in the name of Government of India, Directorate of Estates, as also shop no.7 allotted in the name of (A12) Sanjeev Saluja Ex.PW15/B has also been made in the name of Government of India, Directorate of Estates. Though, the allotment letters in the name of Asha Yadav (A5) and Smt.Gopi (A8) have not been exhibited, but they are admitted by the prosecution as well as the accused persons. Therefore, the same can be considered as admissible in evidence.
181. These allotment letters clearly shows that the shops/property did not vest with the UDM or A2, but with the Directorate of Estates, Government of India i.e. to say that shops actually vested with Government of India, as a sovereign. It may be that A1 and A2 in conspiracy with each other recommended for allotment of shops, which were finally approved by A1, who was the final authority for issuance of allotment letters pertaining to RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 202 of 227 203 allotment of shops in the name of above mentioned persons, but there was no entrustment as such, nor A1/A2 could be said to have any dominion over said shops, therefore Section 409 IPC would not be attracted in the present case.
182. Though, Section 13(2) r/w Section 13(1)(c) is a separate and distinct offence from Section 409 IPC, but as discussed above since there was no entrustment or misappropriation for the detailed reasons discussed above, Section 13(1)(c) would also not be attracted in the present case.
183. Regarding Section 13(1)(d)(iii), the law has been laid down in the following judgments In a case decided by Hon'ble Supreme Court titled M.Narayanan Nambiar Vs State of Kerala 1963(2) Cri.L.J.186, it was held as under:
6. As the first contention turns upon the provisions of S.5(1), it will be convenient to read the same:
5.(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 203 of 227 204 motive or reward such as is mentioned in S.161 of the Indian Penal Code, or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable things without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(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 so to do, or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
We are concerned in this case with S.5(1) (d) of the Act. Under that clause if a public servant by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person valuable thing or pecuniary advantage, he will be guilty of criminal misconduct, punishable under S.5(2) of the Act with imprisonment for a term which shall not be less than one year and which may extend to 7 years, and shall also be liable to fine. The learned RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 204 of 227 205 counsel contends that clause (d) being a penal provision, shall be strictly construed; and that if so construed, it would only take in cases of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner described therein and does not cover a case of a wrongful loss caused to the Government by abuse of his power.
10. ................ . First taking the phraseology used in the clause, the case of a public servant causing wrongful loss to the Government by benefiting a third party squarely falls within it. Let us look at the clause "by otherwise abusing the position of a public servant," for the argument mainly turns upon the said clause. The phraseology is very comprehensive. It covers acts done "otherwise" than by corrupt or illegal means by an officer abusing his position. The gist of the offence under this clause is, that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. "Abuse" means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word 'otherwise' has wide connotation and if no limitation is placed on it, the words 'corrupt', 'illegal', and 'otherwise' mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 205 of 227 206 appears in the clause, that is to say, something savouring of dishonest act on his part. The contention of the learned counsel that if the clause is widely construed even a recommendation made by a public servant for securing a job for another may come within the clause and that could not have been the intention of the Legislature. But in our view such innocuous acts will not be covered by the said clause. The juxtaposition of the word 'otherwise' with the words 'corrupt or illegal means', and the dishonesty implicit in the word "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. Whether he abused his position or not depends upon the facts of each case; nor can the word 'obtains' be sought in aid to limit the express words of the section. 'Obtain' means acquire or get. If a corrupt officer by the said means obtains a valuable thing or a pecuniary advantage, he can certainly be said to obtain the said thing or a pecuniary advantage; but it is said that in clauses
(a) and (c) the same word is used and in the context of those clauses it can only mean getting from a third party other than the Government and therefore the same meaning must be given to the said word in clause (d). 'Obtains' in clauses (a) and (b) in the context of those provisions may mean taking a bribe from a third party, but there is no reason why the same meaning shall be given to that word used in a different context when that word is comprehensive enough to fit in the scheme of that provision. Nor can we agree that as dishonest misappropriation has been provided RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 206 of 227 207 for in clause (c), the other cases of wrongful loss caused to the Government by the deceit practised by a public officer should fall outside the section. There is no reason why when a comprehensive Statute was passed to prevent corruption this particular category of corruption should have been excluded therefrom because the consequences of such acts are equally harmful to the public as acts of bribery. On a plain reading of the express words used in the clause, we have no doubt that every benefit obtained by a public servant for himself, or for any other person by abusing his position as a public servant falls within the mischief of the said clause.
184. It has been further held in a case decided by Hon'ble High Court of Delhi titled Runu Ghosh Vs CBI Crl.A.482/2002, P.Rama Rao Vs CBI Crl.A.509/2002 and Sukh Ram Vs CBI Crl.A.536/2002 decided on 21.12.2011, as under:
66. This question lies at the core of the reference to this Division Bench. The material portion of the reference, while adverting to Sections 13(1)(d) and then dealing with the phraseology of Section 13(1)(d)(iii) and other preceding sub clauses, reads thus:
Whether the absence of adverbs like wilfully, fraudulently, dishonestly, corrupt or illegal means to qualify the verb obtains in this clause would mean that a public servant commits criminal misconduct if he RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 207 of 227 208 while holding such office obtains for any person (and not for himself) any pecuniary advantage which is without any public interest? The statute appears to offer no guidance as to what can be said to be a decision or act that is without public interest.
Though the reference order elaborately lists out the salient facts in the Appeals, notes rival contentions, and even notices relevant case law, it is necessary to recapitulate the preexisting law, i.e. Section 5(1)(d) of the 1947 Act, and juxtapose it with the 1988 Act. The controlling clauses, in both provisions, are in pari materia (a public servant is said to commit the offence of criminal misconduct if he ...). Section 5(1)(d) reads as follows:
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage...Section 13(1)(d)(i), (ii) and (iii), on the other hand, read thus:
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or Crl.A.Nos. 482/02, 509/02 & 536/02 Page 45
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as servant, obtains RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 208 of 227 209 for any person any valuable thing or pecuniary advantage without any public interest.... It is clear from the above comparison that in clause (i), the reference to "corrupt or illegal" means, (of a public servant obtaining for himself, or someone elseany valuable thing or pecuniary advantage) has been retained. However, the reference to doing of such an act "otherwise" (which was there in the previous law, i.e. Section 5(1)(d) has been omitted. The latter parts of Section 5(1)(d), i.e. the public servant obtaining for himself or for any one else any valuable thing or pecuniary advantage, by abusing his position as a public servant has been retained, in Section 13(1)(d)(ii).
A new offence (or subspecies, of the existing offence) has been carved out, in Section 13 (1)(d)(iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else (any person) benefitting by getting a valuable thing or pecuniary advantage, without any public interest. There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone elsenot necessarily by RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 209 of 227 210 abusing his office, or using corrupt or illegal means pecuniary advantage or a valuable thing without public interest.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which results in loss of public interest, or that is contrary to public interest, that is a prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servants overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutabe under Section 13(1)(d)(iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The provision aims at ensuring efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servants RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 210 of 227 211 functioning which would otherwise go unpunished. The blameworthiness for a completely indefensible act of a public servant, is to be of such degree that it is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should be one such as no one would have taken.
81. As noticed previously, the silence in the statute, about the state of mind, rules out applicability of the mens rea or intent standard (i.e. The prosecution does not have to prove that the accused intended the consequence, which occurred or was likely to occur). Having regard to the existing law Section 13(1)(e) (which does not require proof of criminal intent) as well as the strict liability standards prevailing our system of law, therefore, a decision is said to be without public interest, (if the other requirements of the provision, i.e. Section 13(1)(d)(iii) are fulfilled) if that action of the public servant is the consequence of his or her manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted.
185. Regarding the offence u/S 13(1)(d) of the PC Act 1988, in view of the law as laid down by Hon'ble High Court of Delhi in RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 211 of 227 212 Runu Ghosh (supra), it is to be seen whether the prosecution has been able to prove offence u/S 13(1)(d)(iii) of PC Act which criminalizes criminal misconduct of a public servant holding public post which results in somebody else i.e. any person benefiting by getting a valuable thing or pecuniary advantage without any public interest and the prosecution has to establish to prove the said offence that the public officer obtained for someone else not necessarily by abusing his office or using corrupt or illegal means pecuniary advantage or a valuable thing without any public interest. It has been further held in the said judgment that it is not every act which results in loss of public interest or that is contrary to public interest, which is prosecutable offence. It is only those acts done with complete and manifest disregard to the norms and manifestly injurious to public interest which is avoidable, but for the public servants overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, which resulted in pecuniary advantage to another is prosecutable u/S 13(1)(d)(iii). In other words, if public servant is able to prove or show that he followed all the safeguards and exercised all reasonable precautions taking into account the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. In the said judgment, in Para 82 some instances of the same have been given. The said Para 82 is reproduced as under: RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 212 of 227 213
82. It would be useful to in this context, take recourse to certain examples. For instance, in not adopting any discernable criteria, in awarding supply contracts, based on advertisements calling for responses, published in newspapers having very little circulation, two days before the last date of submission of tenders, which result in a majority of suppliers being left out of the process, and the resultant award of permits to an unknown and untested supplier, would result in advantage to that individual, and also be without public interest, as the potential benefit from competitive bids would be eliminated. Likewise, tweaking tender criteria, to ensure that only a few applicants are eligible, and ensure that competition (to them) is severely curtailed, or eliminated altogether, thus stifling other lines of equipment supply, or banking on only one life saving drug supplier, who with known inefficient RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 213 of 227 214 record, and who has a history of supply substandard drugs, would be acts contrary to public interest. In all cases, it can be said that the public servant who took the decision, did so by manifestly failing to exercise reasonable proper care and precaution to guard against injury to public interest, which he was bound, at all times to do. The intention or desire to cause the consequence may or may not be present; indeed it is irrelevant; as long as the decision was taken, which could not be termed by any yardstick, a reasonable one, but based on a complete or disregard of the consequence, the act would be culpable.
186. Here also, the allotment of shops to A5, A7, A8 (since deceased) thereafter transferred to A9 (since discharged), A10, A 11 and A12 by not adopting criteria of OM of 1979 by i.e. by going for public auction/open public tender which resulted in many other persons similarly situated being left out from the consideration zone and which resulted in allotment of shops to to the above persons, RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 214 of 227 215 who were either family members or were having some sort of connections in the Ministry with A1 (deceased) or A2, cannot be said to be in public interest. The said recourse severely curtailed or eliminated altogether the participation of other public persons in the auction, therefore the decision of allotment of shops in favour of above persons cannot be said to have been taken by exercising reasonable or proper care and precaution to guard against the public interest which A1 being the UDM and Cabinet Minister was bound to follow and A2 being Additional Private Secretary to A1 was bound to follow by giving A1 proper aid and advise, since both of them were repository of public trust and faith.
187. As already discussed, in the note dated 01.05.92 by Sh. K.Dharmarajan, JS (UD) at that time Ex.PW32/A has stated in Para 6 of his said note that "when the allotments were made by the UDM and the MOS in 1989 and thereafter in favour of Asha Yadav (A5), Smt. Gopi Lala (A8) (since deceased) and (A7) Virender Arora, policy guidelines of Government in regard to allotment has not been brought to their notice. The allotments on a licence basis are not in conformity with the existing orders of Government laying down the policy for allotment of such shops. The justification for selling shops on auction is to ensure that Government gets the best price for its land and RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 215 of 227 216 property and that the offer is open to the public for any person to apply. Allotment on a licence fee basis results in loss of revenue to Government and hence a departure of policy in regard to allotment of shops on a licence basis can be done only with specific concurrence by the Ministry of Finance. It is also seen that in many of these cases one cannot see any specific circumstance by way of hardship which would warrant an exceptional treatment and departure from policy. In fact, some of these allotments have been made to relatives of officers working in the Ministry of Urban Development and the justification for such ad hoc allotments can be questioned by the public and in a Court of law. He further noted that it may be pointed out that even where shops are to be given on a licence fee basis by the Director of Estates the policy guidelines issued by the Government require that such allotments are done by inviting open tenders from the public. Thus in the present case allotment is not even in consonance with the guidelines issued by the Director of Estates for allotting shops on a licence fee basis. He further noted that allotment of shops on licence fee basis without calling for applications from the public and giving public notice is likely to be questioned at a later date as being improper since the manner of selection of the applicants is not transparent and open to the public and RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 216 of 227 217 not in keeping with the policy guidelines of the Government."
188. The said PW32 clearly questioned the rationale of making allotment of shops on licence basis to the relatives of the officers working in the Ministry of UD and he stated that the same was in blatant violation of norms, wherein allotments have to be done by inviting open tenders or public auction. Despite the said dissenting note put by the JS (UD) Mr. K.Dharmarajan Ex.PW32/A, the same was not concurred by the Secretary (UD), who noted that these shops should be primarily to serve the interest of the people living in the colonies, if by getting the the shop by auction the individual opens a shop for items other than need of the people, how they are tackling it. Thereafter, in conformity with the noting of the Secretary (UD), another note Ex.PW32/B was made by Sh. K.Dharmarajan dated 01.06.92 that "those shops which have good market value should be put on auction basis, while those shops which are meant primarily for serving Government colonies should be on licence basis as suggested by Secretary in his note". Thereafter, the same note was approved by the UDM on 18.06.92 despite the JS (UD) clearly writing that the same was in utter violation of established norms and it may result in loss of revenue to the Government. He was made to change his note, to make it a tailor note as desired by the Secretary (UD), as the RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 217 of 227 218 Secretary (UD) wanted to make the allotments in favour of Asha Yadav, Smt. Gopi and Virender Arora, as desired by the UDM i.e. A1.
189. Further, dissent note Ex.PW36/B was also made by PW 36 Ms.Kiran Chadha in the file (D1) Ex.PW2/2 of Asha Yadav (A5) with regard to the allotment of shop in favour of Asha Yadav (A5) by writing that all vacant shops at the disposal of L&DO are supposed to be auctioned. However, as and when a shop is allotted by UDM in relaxation of rules, L&DO places a shop at the disposal of Directorate of Estates for implementing orders of UDM. Therefore this note also establishes that the shops had to be disposed off by inviting tenders or public auction, which was violated in the present case. Judicial notice can be taken on this fact that all the shops in the present case were allotted in Lodhi Road Market Complex1, New Delhi which even at the time of allotment was in the heart of South Delhi/New Delhi, which is considered to be one of the posh area of Delhi. It would be quite interesting to discuss herein in short, the superfast manner in which the allotments were made in the present case. For instance taking the case of Asha Yadav (A5), she writes a letter to UDM stating that she is an unemployed graduate and unable to find a job, therefore she may be allotted a shop in LRC Complex1 and she RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 218 of 227 219 was immediately obliged by allotting a shop vide note Ex.PW34/C by the A1 and thereafter the file kept on moving for other administrative matters. A5 did not stop there after the allotment of shop no.6 at LRC Complex1, New Delhi to her. She made another application that the said shop be transferred in favour of her mother, which was later on reallotted in favour of her mother i.e. A6 in utter violation of Rules, as there was no Rule in the Manual of Office Procedure regarding the Management of government markets for said reallotment / transfer, yet the shop was regularized in favour of her mother Smt.Reshma Yadav (A6) (since expired). Similarly, taking the case of Smt. Gopi Lala (A8) (since expired), mother of A2. A VIP reference was received in the office of UDM on 25.12.91 on letter dated 19.12.91. On the same day, she was alloted a shop by A1 on which A2 also put a noting in his own handwriting DEII, which was found to be in his handwriting after comparing it with his specimen and admitted handwriting and signatures and Mr.Bhuria who had made recommendation for allotment of shop to A8 was duly informed regarding the said allotment vide reply dated 30.12.91 and thereafter she also made another application that she was suffering from diabetes and her husband had also expired, therefore she wanted to get the said shop reallotted in favour of her grandson Deepak Kumar and in utter violation of Market Instructions contained in Manual of Office RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 219 of 227 220 Procedure, vide which the shop could not have been regularized in favour of her grandson, yet it was approved by UDM i.e. A1 in blatant violation of all the existing norms prevailing at that time.
190. Similarly, (A10) Sant Lal Yadav made an application dated 08.01.92 for allotment of shop to him, as he was handicapped person. The said application was also diarized in the office of UDM on 28.02.92 and on the same day it was alloted by UDM as per the OM of 1979. It also shows the lightening speed by which the said allotment was made in favour of A10 S.L.Yadav, which could not have been done if the said accused have no threads to pull in the Ministry of UD.
191. Similarly, (A7) Virender Arora made an application to UDM Ex.PW37/C dated 23.01.92 for allotment of shop in his favour in the LRC Complex1, as he was also unemployed. The same was also entered into the office of UDM as VIP reference bearing No.5599 on 23.01.92 and the allotment was made to him on the same day by the A1. The reason is not far to see, as the father of A7 was working as Additional Private Secretary i.e. (A3) D.D.Arora (since expired) to the UDM. The alacrity of allotment in favour of Smt. Gopi (A8) is also due to the fact that her son (A2) was working as Additional Private Secretary to the UDM i.e. A1 and RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 220 of 227 221 similarly, in favour of (A5) Asha Yadav was due to the fact that father of A5 i.e. A4 (deceased) was also working as Assistant Private Secretary to A1.
192. Regarding the allotment in favour of (A12) Sanjeev Saluja, his original application for allotment could not be found and for this reason he had to again write a letter. But the said allotment to him could not have been made without him knowing the big and mighty in the office of UDM. The manner in which the said allotments were made, some of them on the same day, shows that everybody in the Ministry of UD knew it was a case of fait accompli, as all the bureaucrats working in Ministry of UD were fully aware that the said allotments had to be made without any demur or protest, as the UDM wanted to have it in a particular way. Therefore, there was no use to raise any objection. Though, some objections were raised by the officials in the Ministry of UD, but they were later on made to eat their words, as per the desire of their higher officers including the Secretary (UD) and the UDM i.e. A1. This undue haste in the manner of allotments to the above persons lead to the inference that all norms were set aside by A1 in conspiracy with A2, A3 and A4 (since expired).
193. Regarding argument of Ld. Defence counsel RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 221 of 227 222 Sh.S.P.Minocha that shops in question could not be disposed off by public auction despite repeated steps taken by the Government, as the reserve price was too high, therefore no bidder came forward, which has been admitted by numerous prosecution witnesses examined on the record. There was even a proposal for transfer of these shops to local bodies, but they were also not ready to accept the said proposal due to exorbitant cost of the shops. Thereafter, the matter was pending for refixation of reserve price, as reserve price was very high. He has also argued that it has been admitted by many prosecution witnesses that the shops in question were lying in a dilapidated condition for a very long time, rather same were causing loss to the government on account of repair and loss of revenue. He further argued that allotments of 15 shops was similarly made by the previous UDM in year 1989, as per clause3 of the exception clause of OM of 1979 and further, the shops in question had been allotted without prescribing any period of leave and licence with the condition that the government reserves its right to cancel the licence and lease, take possession of shops after giving 30 days notice and all the allottees had also given an undertaking to this effect. Therefore, he has argued that there was no violation of law or any norms.
194. This argument of Ld. Defence counsel for A2 is without RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 222 of 227 223 any substance for the reasons as already discussed above. Merely because many shops had been earlier allotted by the previous UDM out of turn without following the norms of auction/tender as per clause3 of the OM of 1979 Ex.PW4/B2 or the Manual of Office Procedure Ex.PW4/B3, does not mean that the present allotments can also be justified to have been done in a rightful manner. The fact remains that previous wrong doings by then UDM cannot be considered a norm in itself by doing same wrong again. Merely because the said earlier allotment made by the previous UDM in 1989 was not challenged, does not mean that there was no illegality or infirmity in the present allotment(s). The allotment of shops to the favourite few who were the relatives of either A2, A3 or A4 or were either closely connected to UDM through other connections, does not justify resort to the exception clause. Even Mr. K.Dharmarajan in his note Ex.PW32/A has clearly stated that the same was causing loss to the Government and it was in violation of the norms as the vacant shops had to be disposed off through open public auction or inviting tenders. Despite the sagacious noting made by Sh.K.Dharmarajan, JS (UD), the same was dissented by Secretary (UD) and he was made to eat his words and was forced to make a tailor made note as per the desires of the Secretary (UD) as well as the UDM i.e. A1 to make the allotment in favour of Asha Yadav (A5), Smt. Gopi (A8) (since deceased) and Virender Arora RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 223 of 227 224 (A7). Sh. K.Dharmarajan was the only sane voice which neither the UDM i.e. A1 or A2, A3, A4 wanted to listen, as they were blinded by the power as well as by the greed of allotment of shops in favour of their near and dears.
195. The pecuniary loss which was caused to the State Exchequer by these illegal allotments, can be seen from the comparative chart proved by PW43 Sh.P.C.Sharma Ex.PW43/C, as the said witness states that the same is attested photocopy of the comparative statement of rates of first three highest bidders in respect of shops and stalls put to tender in pursuance of order of Hon'ble Supreme Court by the Directorate of Estates, which was handed over to him by Sh.K.D.Singh, Assistant Director. The said K.D.Singh (PW4) has also proved the same as MarkPW4/1 and he stated in his testimony that he has attested the said comparative statement, therefore authenticity of said document has been clearly established.
196. From the above comparative statement, for instance the accused Asha Yadav (A5) was allotted shop no.6 at LRC Complex 1, which was later on transferred and realloted in favour of her mother Smt.Reshma Yadav (A6) (since deceased) at a nominal monthly licence fee of Rs.654/ per month, whereas as per said RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 224 of 227 225 comparative statement, the highest tender received was Rs.9410/ per month. Similarly, Smt.Gopi Lala (A8) who was allotted shop no.12 at LRC Complex1, which was later on reallotted / transferred in favour of Deepak Kumar (A9), son of A2 at a paltry monthly licence fee of Rs.638/ per month, whereas as per said comparative statement, the highest tender received was Rs. 12,100/ per month. Similarly, qua shop no.8 at LRC Complex1 which was alloted to Sant Lal Yadav (A10) at a nominal monthly licence fee of Rs.654/ per month, whereas as per said comparative statement, the highest tender received was Rs.8000/ per month. Regarding shop no.11 at LRC Complex1 , which was allotted to Virender Arora (A7) at a peanut monthly licence fee of Rs.638/ per month, whereas as per said comparative statement, the highest tender received was Rs.12720/ per month. Lastly, the allotment of shop no.7 at LRC Complex1 to Sanjeev Saluja (A12) at a meagre monthly licence fee of Rs.654/ per month, whereas as per said comparative statement, the highest tender received was Rs.12,100/ per month. The said comparative statement Ex.PW43/C reveals that shops which were allotted to Asha Yadav (A5), Smt.Gopi (A8) (since deceased), Sant Lal Yadav (A10), Virender Arora (A7) and Sanjeev Saluja (A12) fetched very high amount in the tender process and in most of the cases the said highest bid amount was almost more than 10/12 times compared to RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 225 of 227 226 the paltry amount for which it was alloted to the above accused persons. Therefore, there was a huge pecuniary loss to the State Exchequer and same resulted into huge pecuniary advantage to A 6, A7, A8, A10 and A12, which was without any public interest, and such act of illegal allotments without looking after the interest of the State, which A1 was obliged to look after, being the UDM, as the repository of the power of people, was bound to protect which people had given to her by electing her.
197. As already discussed above in detail, the allotment of present shops to A5 later on realloted in favour of A6 (since deceased), A7, A8 (since deceased) reallotted in favour of A9 (discharged), A10, and A12 was most arbitrary, unfair and in utter violation of Article 14 of the Constitution of India, as no criteria or reasonable classification was made for allotting the shops to a particular person or a class of persons, rather the same were made in blatant violation of all established norms of allotment(s) by following favouritism and nepotism. Since the act of A1 ( since deceased) alongwith A2, A3 (since deceased) and A4 (since deceased) being public servants, who in conspiracy with each other were responsible for getting allotment of shops, which resulted in pecuniary advantage or getting valuable thing in favour of A5 later on reallotted in favour of A6 (since deceased), A7, A8 (since RC No.48(A)/1996 CBI Vs Sheila Kaul & Ors. 226 of 227 227 deceased) reallotted in favour of A9 (discharged), A10 and A12 in terms of allotment of shops by abusing their official position, which was clearly against any public interest.
198. Therefore, there was a clear cut conspiracy between A 1(deceased), A2, A3 (deceased) and A4 (deceased) for committing the illegal act or to commit the offence punishable u/S 13(1)(d)(iii) r/w Section 13(2) of the PC Act. Since A1, A3 and A4 have already expired and the proceedings against them have stood abated, therefore only (A2) Rajan S.Lala stands convicted u/S 120 B IPC r/w Section13 (1)(d)(iii) r/w Section 13(2) of PC Act, 1988. However, (A5) Asha Yadav, (A7) Virender Arora, (A10) Sant Lal Yadav and (A12) Sanjeev Saluja are acquitted of the charge(s) under Section 120B r/w Sec.409 IPC and 13(2) r/w Sec.13(1)(c) and 13(1)(d) of PC Act.
ANNOUNCED IN THE OPEN COURT
ON 30.08.2016 (SANJEEV AGGARWAL)
Special Judge,
CBI03(PC Act)
Delhi/30.08.2016
RC No.48(A)/1996
CBI Vs Sheila Kaul & Ors. 227 of 227