Delhi District Court
Cbi vs . Nazrul Islam & Ors. on 28 July, 2011
IN THE COURT OF ANOOP KUMAR MENDIRATTA : SPECIAL
JUDGE (CBI-08)
TIS HAZARI COURTS : DELHI
CC No. : 37/11 (28.07.2011)
PS:CBI/ACB/New Delhi
CBI Vs. Nazrul Islam & Ors.
O R D E R ON CHARGE
Vide this order I shall dispose off arguments addressed on
charge on behalf of accused.
1. As per case of prosecution, present case was registered on
the basis of conversion report submitted in preliminary enquiry, SIB,
2006, E003 which was registered for conducting enquiry against the
allegation of criminal conspiracy by MCD officials for facilitating un-
authorised constructions in their respective areas. The enquiry was
registered on 10.05.2006 on the direction of the Hon'ble High Court of
Delhi in writ petition no. 4582/03 titled as Kalyan Sanstha Social Welfare
Organisation V/s Union of India.
2. The preliminary enquiry identified properties located at
277-278, Dhaka Johar, Delhi and property at 772-775, main road,
Burari, Delhi. On the basis of recommendation of preliminary enquiry, a
regular case was registered against Nazrul Islam, the then Executive
Engineer, Civil Zone, Delhi and others u/s 120(B) IPC r/w Section 13(1)
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 1/21
(d) punishable u/s 13(2) of Prevention of Corruption Act, 1988. It is also
submitted by IO, a separate chargesheet has been filed with respect to
property no. 277-278, Dhaka Johar, Delhi.
3. It is further the case of prosecution that accused Nazrul
Islam was posted as EE, Civil Line Zone during period 02.11.2002 to
02.08.2004 and while working as EE(B), MCD, Civil Line Zone, he
alongwith AEs and JEs were bound to get the unauthorised construction
demolished in the zone as per rules.
4. It is further the case of prosecution that the MCD officials
namely Nazrul Islam (A-1), S.L. Meena (A-2), R.C. Meena (A-3), B.P.
Rathore (A-4), Dinesh Kumar Gupta (A-5) [Public servants], Anil Mehra
(A-6), Architect,and builder Pawan Kumar Gupta (A-7), entered into a
conspiracy, whereby the builder was facilitated in unauthorisedly
developing the buildings (flats), without any sanctioned building plan in
violation of building bye-laws thereby gaining a pecuniary advantage
and cheating the innocent buyers to purchase the flats. The MCD
officials (accused) are alleged to have violated the instructions/directions
issued by MCD from time to time and thereby facilitated the builder
Pawan Kumar Gupta to complete the unauthorised construction and the
demolition action was intentionally not undertaken. Chargesheet has
accordingly been filed against the accused u/s 120(B) IPC r/w Section
13(2)(d) r/w Section 13(1)(d) of PC Act, 1988 and 217 IPC.
5. Though the counsels for the accused have separately
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 2/21
addressed the arguments but the crux of contention is that vide
notification dated 24.08.1963 issued by MCD in exercise of power
conferred by Sub-clause (b) of Clause 1 of Section 507 of DMC Act,
1957, rural areas have been exempted from certain provisions of the
MCD Act, 1957 and thereby the building regulations are not applicable in
laldora / extended laldora land in village Burari. It is further submitted
that in view of aforesaid notification, no sanction plan was required for
undertaking the construction in Khasra no. 772-774, Burari, Delhi.
Reliance in this regard is also placed upon:
1) 42 (1990) DLT 44 Regal Traders Pvt. Ltd & Anr. Vs. Lt.
Governor of Delhi & Ors.
2) 96(2002) DLT 441 (FB) Municipal Corporation of Delhi V/s
Dalmia Industries P. Ltd.
It is further contended on behalf of accused Anil Mehra
(Architect) that he had only given an opinion to the builder on the basis
of which the 'Bank' which had advanced the loan to the builder for
carrying the construction. It is urged that he cannot be arrayed as an
accused merely for giving an opinion which may be erroneous or
incorrect. It is also contended that there is no evidence to show that he
conspired with the MCD officials or received any other benefit except the
legal remuneration for his services from the builder.
On behalf of accused Nazrul Islam (Executive Engineer), it is
contended that accused has been picked at whims and fancies of
investigating agency leaving behind the other higher officials in hierarchy
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 3/21
though his job was only supervisory in nature. It is submitted that the
accused had been transferred prior to clarifications issued with
reference to notification dated 24.8.63 vide office order dated 20.09.04
by Commissioner, MCD. It is also contended that even the aforesaid
office order dated 20.09.04 is contrary to the notification dated 24.08.63
and could not have been issued. The prosecution case is also
challenged for want of sanction u/s 19 of PC Act, 1988. It is further
contended that the prosecution failed to show any demand of valuable
thing or pecuniary advantage to establish the offence u/s 13(1)(d) of PC
Act, 1988. Reliance is also placed upon 2009(3) RCR (Criminal) 307
(A. Subair Vs. State of Kerala).
So far as the other accused MCD officials are concerned, it
is contended by the counsels that demolition action, if any, could not be
carried due to non-availability of force and nothing adverse could be
taken up against the officials for inferring a conspiracy for facilitating the
builder for carrying the construction. Similarly it is contended that the
officials had been picked by CBI for prosecution at their whims leaving
behind the other officials who were also posted in the zone during the
same period. The factum of construction during the posting periods of
the respective accused is also disputed. Written submissions were also
filed on behalf of accused by Sh. D.C. Singhal, Adv.
6. On the other hand, the submissions made on behalf of
accused are refuted by Ld. PP for CBI and reliance is placed upon the
evidence collected during the course of investigation. It is vehemently
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 4/21
contended that the notification dated 24.8.63 relied upon by the accused
is not applicable since the construction was carried for commercial
purposes and about 104 flats were constructed contrary to the building
bye-laws for sale to private individuals. It is also submitted that the MCD
officials (public servants) intentionally facilitated the carrying of the
construction and no action was taken against this particular property
though action was intiated against several other properties in the zone
which reflected a clear collusion and conspiracy between the accused.
It is also submitted that Sh. Anil Mehra (Architect), was responsible to
ensure that construction is carried in accordance with Building bye-laws
but incorrect information was given that the construction is legal and the
flats constructed were further sold to innocent buyers though the
construction was unauthorised and in violation of the building bye-laws
and regulations.
Ld. PP has further contended that the construction was
unauthorised since it could not have been raised beyond 2 ½ storeys as
per building bye-laws and that too for original residents of village. It is
also contended that various circulars issued by MCD from time to time in
this regard had been violated and reference in this regard is made to
following circulars:-
(i) Letter No. D/167/EE(B) HQ/99 Dated 22.3.99 issued by
Addl Commissioner Engg Town Hall, MCD.
(ii) L No D/48/EE(B)/HQ Dated 15.1.2001 issued by Supdt
Engg (B) HQ MCD.
(iii) Office Order No D/458/Addl Com (E)/2001 dated 4.7.2001
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 5/21
issued by Addl. Commissioner MCD.
(iv) Office Order No. D/476/Addl Com (E)/2001 dated
20.8.2001 issued by Commissioner, MCD.
(v) L No D/38/EE (B) HQ/03 DATED 16.12.2003 issued by
Shri Rakesh Mehta, the then Commissioner, MCD.
(vi) Letter No D/97/EE(B)HQ DATED 06.2.2003 ISSUED BY
ADDL. COMMISSIONER, MCD.
(vii) L No D/845/EE(B)/HQ dated 22.11.2000 issued by
Commissioner MCD.
(viii) Letter No. D/401/EE(B)/110 DATED 16.5.01 ISSUED BY
ADDL COM. (Engg).
It is also contended that notification dated 24.08.63 does not
authorize the commercial activity for building flats for sale and reliance is
also placed upon order dated 03.02.04 and 20.09.04 issued by MCD.
Reference is also made to orders passed in writ petition 2710/1998 in
the matter of Dr. B.L. Wadhera Vs. Govt. of N.C.T. of Delhi decided on
23.08.04. It is also contended that notification of 1963 did not exempt
the rural areas from the provision of Section 346 of the DMC Act and
therefore even in these areas, completion certificate is required. It is
also submitted that notification dated 24.08.63 relied by accused only
exempts the constructions by resident of abadi area for their use from
sanction of building plans for the residential units but does not exempt
the buildings from the purview of building bye-laws and further the
commercial buildings of the present nature were not envisaged to be
covered.
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 6/21
7. I have perused the record, statement of witnesses and given
considered thought to the contentions raised.
It is well settled that a criminal court is required to write a order
showing detailed reasons only if the accused is discharged or it is found that
the charge leveled against him by the prosecution is groundless. If the court
comes to a conclusion on the basis of material placed before it that the charge
is to be framed, this can be ordered without detailed reasons being recorded
(Kanti Bhandra Shah & Anr. Vs. The State of West Bengal, JT 2000(1) SC
134).
Observations in the case of State of Bihar Vs. Ramesh Singh:
1977 SCC (Cri) 533 and State of Madhya Pradesh Vs. Mohan Lal
Soni 2000(20) JCC(SC) 676 may also be referred in this context, which
lays down that at the stage of charge the truth, veracity and facts of the
prosecution evidence is not to be meticulously judged, nor any weight to
be attached to the probable defence of the accused and it is not
obligatory on the court to consider the evidence relied upon by both sides
in detail or to weigh it in a sensitive balance.
In the case of Hem Chand Vs. State of Jharkhand reported in
2008 IV AD (S.C.) 94, the Hon'ble Supreme Court has observed
".... The Court at the stage of framing charge exercises a limited
jurisdiction. It would only have to see as to whether a prima facie case has
been made out. Whether case of probable conviction for commission of an
offence has been made out on the basis of the materials found during
investigation should not be the concern of the court. It, at that stage, would
not delve deep into the matter for the purpose of appreciation of evidence".
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 7/21
The basic time tested principle is that the court has to form a
reasonable opinion about existence of grave suspicion regarding
commission of offence and for the aforesaid purpose the court
may sift and weigh the evidence for limited purpose of finding out
whether or not a prima facie case against the accused is made
out.
8. The prosecution has relied upon the following pieces of
evidence which were collected during the course of investigation and are
relevant to assess the case against the accused.
a) Investigation revealed that property no. 772-775, main road,
Burari, Delhi Ward no. 104 was booked for the first time against
unauthorised construction vide file no. 135 dated 29.9.03. The said
building was stated to be an apartment in name and style of Hoovers
Apartments owned/built by accused P.K. Gupta (A-7) (builder). Further
the construction described as basement, under construction and 10
flats under construction at ground floor and 10 flats at first floor with
staircase were booked by MCD on 29.09.03. Accused B.P. Rathore was
posted as JE, accused Nazrul Islam was as EE during the aforesaid
period.
(b) Investigation also revealed that a complaint regarding
unauthorised construction in the given property was received in Office of
EE (B), Civil Line Zone vide no. 5145, dated 14.08.03 which was
marked to accused B.P. Rathore (JE) on 18.08.03. Despite the said
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 8/21
fact, the property was not timely booked and more time was given to
builder to complete the unauthorised construction and no demolition
action was taken at ongoing construction stage and no sealing action
was lodged.
(c) Investigation further revealed that the property was booked
for the second time against unauthorised construction vide file no. 56
dated 1.4.04 and the unauthorised construction was shown as under
construction 10 flats at second floor with staircase.
(d) Investigation also revealed that the instead of taking
demolition action pursuant to the earlier booking of the property on
29.09.03, the property was booked again for the second time and no
coercive action was taken to stop and demolish the unauthorized
constructon though formally a show cause notice, self demolition notice
and demolition order were issued on files.
(e) Investigation also revealed that subsequent to booking of
unauthorised construction in the said property, the construction of entire
Pocket no. II and Pocket no. III consisting of 34 and 36 flats were
carried out but said construction was neither booked for unauthorised
construction nor demolition action was carried by the officials of MCD. It
was also revealed that the construction in the above property started in
November, 2002 and continued till February, 2006. Further no
demolition action was taken with respect to this particular property
though at least 20 times demolition action was chalked out.
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 9/21
(f) Investigation also revealed that accused Pawan Kumar
Gupta had constructed 104 flats while MCD had booked only 30 flats of
Pocket I against unauthorised construction though there are 3
pockets/blocks consisting of 34, 34 and 36 flats respectively.
It was also revealed that in block A, besides basement, 10
flats each were constructed on ground floor, first floor, second floor
respectively and four flats were constructed on 3rd floor. In block B
ground floor was constructed for parking while 10 flats each were
constructed on first, second and third floors and four flats were
constructed on fourth floor. Similarly in block C, ground floor was for
parking etc. while 11 flats were constructed on 1st floor, 10 flats on
second floor, 10 flats on third floor and five flats on fourth floor.
(g) It is also the case of prosecution that the Khasra no. 772
(measuring 1 beegha) prior to construction was in possession of Neetu
Gupta D/o P.K. Gupta, Khasra no. 777 (measuring 1 beegha) was in
possession of Usha Gupta W/o P.K. Gupta, Khasra no. 773 (measuring
1 beegha) in possession of Manjeet Bansal and Khasra no. 774
(measuring 11 biswa) in possession of Janak Raj Bansal. The
construction agreement executed on 05.04.02 was further executed
between Neetu Gupta and Usha Gupta with M/s Hoovers Credit and
Leasing Pvt. Ltd. through its Director Pawan Kumar Gupta.
Further the construction agreement between Sh. Manjeet
Bansal in respect of Khasra no. 773 was entered on 10.09.04 and the
construction agreement between Janak Raj Bansal and M/s Hoovers
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 10/21
Builder Pvt. Ltd. in respect of Khasra no. 774 was entered on 08.12.05.
(h) The fact that the construction was commenced in 2002 is
also stated to be supported by the fact that a project report was
submitted by the Hoovers Credit and Leasing Company Pvt. Ltd. in
Indian Overseas Bank wherein construction is stated to be started in
first week of November, 2002. The loan of Rs. 2.20 crore was also
financed by bank in installments on 19.02.03, 27.09.04, 05.10.05 and
16.04.05.
(i) A writ petition was also filed by Adesh Kumar Tyagi against
MCD including Pawan Kumar Gupta for stopping of unauthorised
construction wherein the construction contrary to the terms of sanction
was directed to be stayed.
(j) So far as accused S.L. Meena, EE is concerned, it is also
alleged that he filed a status report in form of affidavit on 19.01.06 in the
writ petition suppressing the unauthorised construction carried out at
Khasra no. 772-774.
(k) Investigation also revealed that SHO, Timarpur and I/C
Burari Chowki had lodged several complaints but S.L. Meena, the then
EE, R.C. Meena, the then AE and Dinesh Kumar Gupta, the then JE did
not initiate any coercive action to stop/seal/demolish unauthorised
construction. Reference in this regard is also made by prosecution to
complaint dated 17.10.05 forwarded by SHO, Timarpur which was
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 11/21
received in office of EE on 26.10.05 and marked to Dinesh Kumar
Gupta, the then JE. It is alleged that during this time, S.L. Meena was
posted as EE, RC Meena as AE and no coercive action was taken by
MCD.
(l) A case u/s 420 IPC is also stated to have been separately
registered on complaint filed by the purchasers of the flats against
accused Pawan Kumar Gupta which is pending before the Court of
ACMM, Delhi.
9. The evidence collected by the prosecution during
investigation and as pointed above clearly reflects that construction of
about 104 flats was carried over extended Lal Dora land during the
period 2002-2006. Accused (MCD officials) (public servants) posted
during the aforesaid period at one or the other point of time abused their
official positions and entered into criminal conspiracy with the builder
P.K. Gupta to ensure that the builder is able to carry and complete the
unauthorised construction. The same is exhibited by the fact that
complete details of the unauthorised construction were not entered in
the watch and ward register and the action for demolition was not taken
at the stage of ongoing construction with an intention to give the time to
the builder to complete the construction. Neither any coercive action was
carried by way of sealing u/s 345(A) of DMC Act or launching of
prosecution against the builder u/s 461 of DMC Act. The builder as such
was able to sell off some of the flats to innocent buyers and a separate
case u/s 420 IPC is also stated to have been registered against the
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 12/21
builder. The defence of accused that due action was initiated appears to
be sham and can be further assessed after evidence is led on record.
10. Even if officials believed that notification dated 24.8.63
protected the construction carried by the builder, the office order no.
T.P/G/683/04 dated 03.02.04 issued by Commissioner, MCD clearly
spelled out that the notification only exempts the residents of abadi area
from the sanction of building plans for other residential units but does
not exempt the buildings from the purview of building bye-laws. It was
specifically observed that the Zonal Officers of MCD and staff
responsible for controlling building activities had been misinterpreting
the above notification thereby permitting all sort of illegal and
unauthorised construction within Lal Dora. It was frther clarified that
only a building, residential in character and not going beyond 2 ½
storeys and owned by the original resident / his descendant is to be
permitted. Further any other building in Lal Dora / extended Lal Dora
required prior approval and sanction of the building plans from the
Municipal Corporation of Delhi as per the provisions of MPD-2011, Zonal
Plan and Building Bye-Laws.
Reference in this regard may also be drawn to circular no.
PAIL/2004/88/SE(B)HQ dated 20.09.2004 issued by Commissioner,
MCD consequent upon judgement passed by the Hon'ble High Court of
Delhi in writ petition(civil) no. 2710/1998 in the matter of Dr. B.L. Wadera
Vs. Govt. of NCT, Delhi & Ors. It was reiterated therein that the Chief
engineers, S.E., EE, AE and JE shall ensure that no building activity
contrary to the provisions contained in DMC Act, 1957 and building bye-
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 13/21
laws be permitted in all types of buildings in lal dora / extended lal dora.
Further the instructions contained in office order no. TP/G/68304 dated
03.09.04 were emphasised.
11. For purpose of appreciating the applicability of notification
dated 24.08.1963, exempting from certain provisions of DMC Act, it may
be appropriate to note the objective regarding consolidation and
extension of lal dora as referred in minutes of meeting regarding
consolidation and extension of lal dora held in the Office of Hon'ble
Lieutenant Governor on 21.03.91 as relied upon by the prosecution. The
copy of which was also circulated to the Town Planner and other
concerned officers for necessary action.
" (1)---------------------
(2)--------------------
(3)------------------
(4) It is necessary to ensure that the
facility of extended Lal Dora is available only to
the bonafide residents of the village and not to
outsiders who have purchased agricultural land
in Delhi for investment and speculative
purposes. Therefore, only those persons would
be entitled to get land in the extended Lal Dora
who were original residents/land owners of the
villages.
For getting a plot in the extended lal
dora, the land holder should have held
bhoomidhari rights in the village for at least 20
years and should have been ordinarily resident
in the village for this period. The record date for
counting this period will be the date of issue of
first statutory notification for consolidation of
holdings in the village.
(5)------------------------
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 14/21
(6)-----------------------
(7) The extended lal dora may be treated
at par with the original lal dora. The MCD would
be required to provide civic amenities to the
extended lal dora at par with the lal dora.
(8) The extension of the lal dora is meant
for meeting the residential needs of the land
owners. Investment by outsiders for industry etc.
in the extended lal dora needs to be
discouraged. The Commissioner of Industries
would undertake a review of the industries
permitted in the lal dora with a view of restricting
these to those industries which have a direct
nexus with agricultural operations or provide a
source of supplemental income to people whose
primary source of income is agriculture.
(9) The issue whether rights in the
extended lal dora can be sold legally, would be
examined separately."
The relevant clauses at Sr. no. 4, 7, 8 and 9 clearly reflect
that the facility of extended lal dora is available to only bonafide
residents and not to outsiders who have purchased the land in Delhi for
investment and speculative purpose and the land holder should have
held bhoomidari rights in the village for at least 20 years. Further in the
lal dora, construction beyond 2 ½ floors will not be permitted and is
meant for meeting the residential needs of the land owners. In the
present case consequently the commercial project for construction and
sale of flats could not have been undertaken.
12. It may be also appropriate to discuss the authorities relied
upon by the prosecution as well as accused with reference to notification
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 15/21
dated 24.08.63 whereby in exercise of the power conferred by Sub-
Clause b of Clause I of Section 507 of DMC Act, 1957 exemption was
granted to rural areas from certain provisions of the act i.e. (Section 332,
333, 334, 335, 336, 342 and 347).
In B.L. Wadhera Vs. Govt. of NCT of Delhi C.M. no.
6904/2004 in WP(C) no. 2710/1998 decided on 23.08.2004 by
Hon'ble Division Bench of Delhi High Court relevant observations
were made with respect to the applicability of building bye-laws with
reference to notification dated 24.08.63 referred to above. In para 8 it
was observed that it was not the intention of the Government by
exempting these areas from certain provisions to allow the building
activities contrary to the provisions contained in the building bye-laws or
to allow the construction of buildings for commercial purpose. The stand
of the DDA and MCD was also to the effect that only a building
residential in character and not going beyond 2 ½ storeys and owned by
the original resident / his descendant is to be permitted and any other
building in rural areas requires prior approval and sanction of building
plan from the Municipal Corporation of Delhi as per the provisions of
Master Plan of Delhi -2001 and the zonal plan and the building bye-laws.
In para 30 notice was also taken of section 349(A) and 481 of DMC Act,
1957 and it was further observed that neither the operation of Section
481 nor section 349 A can be said to have been not applicable in view of
notification of 1963 issued in the 1963 in exercise of powers conferred
by Sub-clause 1 of clause b of Section 507 of DMC Act. It was also held
in para 31 that provisions contained in Section 346 are made applicable
even in lal dora or abadi areas and the notification of 1963 has not
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 16/21
exempted the rural areas from the provisions of Section 346 of DMC Act
and therefore even in these areas completion certificate will be required
by anyone whoever is erecting a building. In para 32 it was also
observed that if in the opinion of the court, if the erection of the building
is in contravention of any provisions of DMC Act, or the rules or bye-laws
made therein, action can be taken.
It is manifest that in the present case accused has taken the
project of construction of 104 flats for sale and the development of the
land/plots would require an approved layout plan by the competent
authority since other amenities and provisions also need to be provided
to the flat owners alongwith provision for common areas and access to
the land. The stand of the accused that such construction is exempted
under the notification dated 24.08.63, in my opinion appears to be
misplaced.
I am of the considered view that 42 1990 DLT 44 Regal
Traders Pvt. Ltd. & Anr. Vs. Lieutenant Governor of Delhi & Ors,
Municipal Corporation of Delhi Vs. Dalmia Industries Private Ltd.
2002(96) DLT441 referred by the accused, cannot come to their rescue.
In MCD Vs. Dalmia Industries Pvt. Ltd. (Supra), the respondents
proposed to construct a building complex on the village abadi land which was opposed by MCD though the land was claimed to be covered under notification dated 24.08.63. The construction was opposed with reference to Section 312 and 313 of DMC Act on the ground that respondents were constructing a huge building complex of 59 flats alongwith offices and shops necessitating common amenities and services to be provided. (Section 312 deals with owner's obligation CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 17/21 when dealing with land as building sites and Section 313 lays down the provision for lay out plan). It was observed by the Hon'ble High Court that the very fact that by reason of aforesaid notification dated 24.08.63, only certain provisions of the DMC Act had been excluded, there cannot be any doubt that thereby the other provisions of the Act which specifically have been enacted for a different purpose namely public street cannot be said to have been excluded. It was also observed that therefore it would not be correct to contend that Section 312 and 313 would not be applicable in cases where the land is set to be divided into various and individual plots. The said judgement has also been referred to in B.L. Wadhera Vs. Government of NCT of Delhi (Supra) and does not exempt the construction of flats contrary to building bye-laws.
13. Counsel for accused have next contended that Section 13(1)
(d) of PC Act cannot be invoked since there is no evidence of passing of illegal gratification to the public servants.
Section 13(1)(d) of PC Act, 1988 encompasses three situations wherein a public servant by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage OR by abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage OR while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest. In the present case, as already observed, the unauthorised construction of flats was carried in conspiracy with Sh. P.K. Gupta, Builder thereby facilitating him to build and sell the unauthorised flats CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 18/21 and as such the pecuniary advantage was gained by P.K. Gupta due to abuse of position by public servants (i.e. MCD officials) without any public interest. In the facts and circumstances the authorities relied upon by the counsel for accused 2009(3) RCR (Criminal) 370 and CRL. REV.P. 74/2003 ALPANA DAS V/S CBI are distinguishable.
14 It may also be observed that the contentions raised on behalf of counsels for accused Nazrul Islam and S.L. Meena that the prosecution is bad for want of sanction against the accused u/s 19 of PC Act, 1988 is meritless. It has been duly pointed out by IO during the course of arguments that accused Nazrul Islam stood compulsorily retired from the MCD and accused S.L. Meena had been dismissed from service on the date of obtaining the sanction against the other co- accused (MCD officials / public servants) and as such, any subsequent orders obtained by them for reinstatement after the filing of chargesheet may not be of any consequence. The accused have not produced any documents to show in case they were in service on the date of filing of chargesheet to refute the contentions made by CBI.
15. Contention raised by counsel for accused that Nazrul Islam being EE had only a supervisory role and was not required to check the unauthorised construction carried in the premises appears to be without any merit. Office order no. D/476/Addl. Com.(E)/2001 dated 20.08.2001 dealing with the instructions regarding working of the Building Department does not exempt the Executive Engineers from the inspection of the site details the unauthorised construction is carried.
CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 19/21Rather the mandate appears to be on the JE, AE, EE and also the supervision at higher levels. Similarly the demolition actions are also required to be carried as per the priority fixed.
16. So far as accused Anil Mehra, Architect is concerned, he rendered his services to facilitate completion of unauthorised construction at 772-774, main road, Burari contrary to Building Bye- Laws. He misrepresented the fact by stating that "Till today no building bye-laws exist for getting sanction of building plan at lal dora, Burari"
and gave a misleading report. In the aforesaid facts and circumstances, it is difficult to hold at this stage that the accused was not a part to conspiracy for carrying of unauthorised construction of flats.
17. Counsel for accused have also contended that only sub- section 2 of Section 120(B) would be applicable in the present case since the alleged criminal conspiracy for carrying unauthorised construction is not punishable for a terms of 2 years or upwards. On the other hand the said contention is refuted on behalf of prosecution.
It is pertinent to note that a separate chargesheet stands filed against Sh. P.K. Gupta for offence u/s 420 IPC on the complaint of the purchasers of the flats as informed by prosecution. The statement of the purchases has also been categorically recorded to the effect that the flats had been sold by misrepresentation as to the requirement of the 'sanction plans'. The conspiracy as such clearly includes the element of cheating as the unauthorised flats were being constructed for sale to the innocent buyers misrepresenting the factum of requirement of sanction CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 20/21 plan.
18. On perusal of the report U/s 173 Cr.P.C. statements of the witnesses recorded U/s 161 Cr.P.C., contents of the record seized by the CBI during investigation and after considering the detailed submissions made by the counsels, I am of the considered view that prima facie that there is enough material on record to frame charges for commission of offences punishable U/s 120-B IPC r/w sec 420, IPC and Section 13(1)
(d) r/w Sec 13(2) PC Act, 1988 against all the accused. Accused Nazrul Islam, S.L. Meena, R.C. Meena, B.P. Rathore, Dinesh Kumar Gupta (public servants) are also liable to be charged for offence u/s 13(2) r/w 13(1)(d) of PC Act, 1988 and 217 IPC.
Announced in the (Anoop Kumar Mendiratta) open Court on Special Judge(PC Act) 28.07.2011 CBI-8, Central District. CC No. : 37/11 CBI Vs. Nazrul Islam & Ors. Page 21/21