Orissa High Court
Pratima Mohanty vs State Of Odisha (Vig.) ........ ... on 4 September, 2019
Equivalent citations: AIRONLINE 2019 ORI 149
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 3177 Of 2017
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with T.R. No.30 of 2014 pending
on the file of Special Judge, (Vigilance), Bhubaneswar.
---------------------------
Pratima Mohanty ........ Petitioner
-Versus-
State of Odisha (Vig.) ........ Opposite party
CRLMC No. 4804 Of 2015
Bibhuti Bhusan Ray
and others ........ Petitioners
-Versus-
State of Odisha (Vig.) ........ Opposite party
For Petitioners: - M/s. Soura Ch. Mohapatra
Puspamitra Mohapatra
Biplab Kumar Dash
S.A. Hapiz, P.K. Swain
Sambit Biswal
For Opp. Party: - Mr. Niranjan Moharana
Addl. Standing Counsel
(Vigilance)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 26.08.2019 Date of Judgment: 04.09.2019
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S. K. SAHOO, J. The petitioner Pratima Mohanty in CRLMC No.3177 of
2017 and the petitioners Bibhuti Bhusan Ray, Rajendra Kumar
Samal, Parsuram Biswal and Prakash Chandra Patra in CRLMC
No.4804 of 2015 have filed these criminal miscellaneous
applications under section 482 of the Code of Criminal Procedure
for quashing the impugned order dated 18.08.2014 passed by
the learned Special Judge, (Vigilance), Bhubaneswar in T.R.
No.30 of 2014 in taking cognizance of offences under section
13(2) read with section 13(1)(d) of the Prevention of Corruption
Act, 1988 (hereafter '1988 Act') and section 420 read with
section 120-B of the Indian Penal Code and issuance of process
against them. The said case arises out of Bhubaneswar Vigilance
P.S. Case No.31 of 2005.
Since both the CRLMC applications arise out of the
same case, with the consent of learned counsel for both the
parties, the applications were heard analogously and disposed of
by this common judgment.
2. The prosecution case, as per the first information
report dated 08.11.2005 lodged by K.S. Balabantray, Deputy
Superintendent of Police, Vigilance, Vigilance Cell Unit Office,
Bhubaneswar before the Superintendent of Police, Vigilance,
Bhubaneswar Division, Bhubaneswar, in short, is that a
3
preliminary enquiry was taken up basing on the credible source
information that certain public servants occupying crucial
position in Bhubaneswar Development Authority (hereafter
'B.D.A.') and in the Housing and Urban Development
Department, Government of Odisha (hereafter 'H. & U.D.
Deptt.') surreptitiously distributed prime plots in Commercial
Complex District Centre, Chandrasekharpur, Bhubaneswar,.
It is alleged in the F.I.R. that during the year 2000,
the petitioners Parsuram Biswal and Rajendra Kumar Samal were
functioning as Dealing Assistants in the Allotment Section in
B.D.A. and Sri Bivas Kanungo, OAS(I) and Sri P.K. Patnaik,
OAS(I) were the Officer on Special Duty (land) and Secretary,
B.D.A. respectively. In pursuance of the criminal conspiracy and
by abusing their official positions, those officials of B.D.A.
surreptitiously distributed prime plots in Commercial Complex
District Centre, Chandrasekharpur, Bhubaneswar among Sri
Sibananda Biswal, brother of the petitioner Sri Parsuram Biswal,
in his own name Sri Bivas Kanungo, OAS(I), ODS(Land), B.D.A.,
Smt. Sanjukta Mohanty, wife of Sri Alekha Padhiary, OAS (I),
Director, Housing Government of Orissa, Sri Pradyumna Kumar
Mohanty, brother of the petitioner Pratima Mohanty, Steno to the
then Vice Chairman, B.D.A., Smt. Amita Tarenia, wife of Sri
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Ashok Tarenia, OAS (I), H.U.D., Smt. Triptimayee Pradhan, Smt.
Rajalaxmi Samal, Sri Anam Charan Pradhan, Sri Anirudha
Patnaik and Smt. Kalpana Sarkar.
It is further alleged in the F.I.R. that there was no
advertisement in providing opportunity to the general public
regarding availability of B.D.A. plots for sale and their sale
prices. Keeping the general public in darkness, the public
servants in B.D.A. who had access to such information as
insiders, distributed the prime plots among themselves or their
relatives beyond the knowledge of general public and that to at
minimal rates as compared to the prevalent rates in the area and
thereby causing undue pecuniary advantage to the allottees and
corresponding loss to the B.D.A. and public exchequer without
any public interest.
It is further alleged in the F.I.R. that the plots
developed by B.D.A. in the same locality as District Centre,
Chandrasekharpur were put to auction in the advertisement
published in the Daily Newspaper "Indian Express" dated
13.10.2001, in which sealed tenders were invited from the
intending purchases for allotment of commercial plots at District
Centre, Chandrasekharpur at the minimum cost of Rs.120/- per
sq. ft. but after opening of tender, the intending bidders were
5
found to have quoted rates Rs.339/- (highest bidder) per sq. ft.
and Rs.225/- (lowest bidder) per sq. ft whereas in the instant
case, plots in the prime locality were allotted to the Land Officer
of B.D.A., kith and kin of B.D.A. employees at a minimal rate of
Rs.71.00 per sq. ft. surreptitiously. Taking the lowest rate of
Rs.225/- per sq. ft. which was obtained in case of District
Centre, Chandrasekharpur in response to the aforesaid
advertisement dated 13.10.2001, the wrongful loss sustained by
B.D.A. comes to Rs,30,27,849.80.
It is further alleged in the F.I.R. that as per the
registers of Sub-Registrar, Khandagiri maintained for registration
of sale deeds of lands for the year 2000, the average cost per sq.
ft. in that locality worked out at Rs.506.40 and adopting this
yardstick, the loss sustained by B.D.A. comes to
Rs.71,57,055.00 and corresponding undue pecuniary advantage
to the public servants and the aforesaid private persons.
It is further alleged in the F.I.R. that in the year
2000, more than hundred plots in the same locality were allotted
on record at a lesser price by the aforesaid B.D.A. officials
without any public interest by abusing their official position with
ulterior motive. It is stated that the aforesaid facts disclosed
commission of offences under section 120-B of the Indian Penal
6
Code and section 13(2) read with section 13(1)(d) of the 1988
Act by the petitioners Parsuram Biswal and Rajendra Kumar
Samal so also by Bivas Kanungo, OAS (I), P.K. Patnaik, OAS(I)
and others.
3. On the basis of such F.I.R., Bhubaneswar Vigilance
P.S. Case No.31 of 2005 was registered under section 13(2) read
with section 13(1)(d) of the 1988 Act and section 120-B of the
Indian Penal Code.
During investigation of the case, it was found that
the Govt. of Odisha in G.A. Department alienated Ac.35.120 dec.
of land in favour of B.D.A. under Mouza Chandrasekharpur in
Bhubaneswar Municipal Corporation with a purpose to establish
Commercial Shopping Complex. On getting such land, B.D.A.
authorities introduced one scheme styled as "District Centre,
Self-Financing Commercial Complex, Chandrasekharpur,
Bhubaneswar". A brochure was prepared mentioning the details
of the scheme, numbers of different plots, the norms and terms
for applying for the plots, payment schedule for each category of
plots, selection of allottees, payment of interest, last date of
receipt of applications, refund of money, execution of lease
deeds etc. As per the conditions reflected in the brochure, each
applicant has to purchase a brochure containing application
7
forms and to apply in the prescribed format by depositing the
EMD through challan. Tender call notice was published in daily
newspaper "The Samaj" inviting intending persons to apply for
those plots. In response to such publication, 510 numbers of
applications were received within due date. A lottery was
conducted against 224 numbers of commercial plots and the rest
plots were not included in the said lottery as those were reserved
for various other purposes. Separate lotteries were conducted for
Pindies and other categories of plots on different dates.
It also revealed during course of investigation that as
per the brochure condition, the Chairman of B.D.A. had the
discretionary quota of 10% of the total layout plots. Minister of
H. & U.D. Deptt. used to be the Chairman of B.D.A. Though the
previous Minister passed order relating to allotment of some
plots from his discretionary quota, after Shri Sameer Dey
became the new Chairman, he cancelled the order of the
previous Chairman and allotted the plots to his supporters
according to his own choice. Some of the applicants who could
not get plots approached this Court by filing writ petitions and as
per the order of this Court, a lottery was again held on
03.01.2000 against 88 numbers of plots in which only 18 plots
were allotted to the persons who had approached the High Court.
8
The Architect Section of B.D.A. prepared lay out plans and
accordingly the entire land alienated to B.D.A. were plotted to
379 commercial plots and ultimately ten plots remained vacant.
The B.D.A. authorities without taking any steps for allotment of
ten plots as laid down in the brochure, made no advertisement
inviting tender from intending purchasers rather concealed the
matter from the general public and thereby avoided competition.
The relatives of the employees/office holders and accused
persons in B.D.A. and H. & U.D. Deptt. submitted applications in
plain papers for allotment of those ten plots and on the basis of
lottery held on 30.09.2000, those ten plots were allotted to
different persons.
It was found during investigation that one of such ten
plots was allotted to one Sivananda Biswal, the nephew of the
petitioner Parsuram Biswal who initiated a separate file on the
subject on 18.08.2000 and suggested for allotting the plots in
favour of ten applicants who had deposited initial money along
with their applications and further suggested to obtain orders of
Chairman and marked the file to the Section Officer concealing
the fact that his relative Sivananda Biswal was one of the
applicants. He even did not suggest the authority to go for
tender process as per brochure condition.
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It was further found during investigation that the
petitioner Bibhuti Bhusan Ray as Section Officer in his note dated
19.08.2000 agreed with the suggestion given by petitioner
Parsuram Biswal and further suggested to sub-divide the bigger
plots into smaller sizes to accommodate all the applicants and
marked the file to Allotment Officer with suggestion to allot the
plots in favour of the ten applicants. He also concealed the fact
that his close friend Sri Anam Charan Pradhan, a Panel
Contractor of B.D.A. was one of the applicants. Later on the
petitioner transferred the ownership of the plot allotted to Sri
Pradhan in the name of his nephew Sri Devashis Biswal and
occupied the same. He has also not suggested going for tender
process and for wide publication of the vacant plots.
It was found during investigation that the file was
then placed before the Allotment Officer Sri Satyabrata Rout,
O.A.S. who marked the file on 21.08.2000 to the Secretary,
B.D.A. Sri P.K. Patnaik, O.A.S.-I who gave his noting and marked
the file to the Vice-Chairman, B.D.A. and on 30.08.2000 Sri C.J.
Venugopal, I.A.S., the then Vice-Chairman, B.D.A. simply
marked the file to the Chairman, B.D.A. for his order. On the
very day i.e. on 30.08.2000 the then Minister -cum- Chairman,
B.D.A. Sri Sameer Dey signed the file and approved the
10
suggestions and passed final order regarding allotment of ten
plots to the applicants. On 05.09.2000 the petitioner Parsuram
Biswal dealt with the file again and mentioned to allot the plots
to ten applicants fixing the date for lottery on 19.09.2000. The
petitioner Bibhuti Bhusan Ray also gave his noting and draft
letter was prepared to intimate the allottees about allotment of
plots in their favour and ultimately ten applicants were favoured
with allotment of the plots. None of the applicants in their
applications disclosed that their relatives were working in the
B.D.A./ H. & U.D. Deptt. Similarly none of the accused public
servants ever disclosed that the applicants were their family
members/relatives.
It was also found during investigation that one of the
ten vacant plots was allotted in favour of one Pradyumna Kumar
Mohanty whose application was without any date and the
applicant happens to be the brother of the petitioner Pratima
Mohanty, Steno to Vice-Chairman, B.D.A. The application was
received on 09.07.2000 by Sri P.K. Patnaik, Secretary, B.D.A.
Similarly one of such vacant plots was also allotted in favour of
Smt. Rajalaxmi Samal whose application is dated 18.04.2000
and she happens to be the sister-in-law of the petitioner Prakash
Chandra Patra who was the then Junior Assistant, Allotment
11
Section, B.D.A. and it was forwarded by the Minister Sri Sameer
Dey on 13.08.2000 and received by Secretary, B.D.A. Similarly,
one of the ten vacant plots was allotted in favour of Triptimayee
Pradhan, wife of the petitioner Rajendra Kumar Samal, Dealing
Assistant, Allotment Section-II, B.D.A. and P.A. to Hon'ble
Minister, H. & U.D. Deptt. whose application was without any
date and it was received on 14.08.2000 by Sri P.K. Patnaik,
Secretary, B.D.A.
It was further found during course of investigation
that the plots were allotted at a much lower rate than the
prevailing market price for which B.D.A. sustained huge wrongful
loss. The plots were allotted at the rate of Rs.71/- per sq. ft.
whereas in the advertisement, sealed tenders were invited at the
minimum rate of Rs.120/- per sq. ft. During opening of tender, it
was found that the highest bidder quoted Rs.339/- per sq. ft.
and the lowest bidder quoted Rs.203/- per sq. ft. and it was
calculated that B.D.A. sustained a loss of more than Rs.71 lakhs.
Since all the petitioners were the Government
Servant working in B.D.A., Bhubaneswar, sanction orders for
prosecution were obtained and charge sheet was submitted
against them along with Sri Sameer Dey, the then Minister, H. &
U.D. Deptt. on the accusation that they entered into criminal
12
conspiracy and committed criminal misconduct by abusing their
official position showing undue official favour to the
applicants/allottees as they are somehow or other related to
them and allowed illegal pecuniary advantages to the allottees in
allotting ten plots as a result of which B.D.A. sustained huge loss
and thereby making the accused persons liable under section
13(2) read with section 13(1)(d) of the 1988 Act and section 420
read with section 120-B of the Indian Penal Code.
4. Mr. Soura Chandra Mohapatra, learned counsel
appearing for the petitioners challenging the impugned order
emphatically contended that except the petitioners Parsuram
Biswal and Bibhuti Bhusan Ray in CRLMC No.4804 of 2015, none
of the other three petitioners dealt with the allotment file in any
manner and therefore, merely because one of the ten plots was
allotted to the family member of each of those three petitioners,
without any other clinching evidence, it cannot be said that they
conspired with the co-accused persons or influenced anybody for
getting the plots illegally. It was argued that for reduction of the
valuation of the plots, none of the petitioners have got any role
in it rather the case record indicates that at the instance of Sri
P.K. Patnaik, Secretary, B.D.A., the valuation of the plots was
made by Shri Jyoti Prasad Panda, the then Deputy Manager
13
(Project Custom), B.D.A. which was approved by Rahaman Alli,
Finance Member, B.D.A. and those two persons have not been
arrayed as accused rather they were cited as witnesses in the
charge sheet. It is further argued that out of total 379
commercial plots which were carved out through six-time
revision of the lay out plan, as per charge sheet, 301 plots were
allotted through lottery, 18 plots were allotted on the basis of
the order passed by this Court, 25 plots were allotted by the
discretionary quota of the Chairman, 13 plots were allotted as
per the approval of the committee, 8 plots were allotted through
auction, 3 plots were reserved for petrol pump and one plot was
not allotted as the matter was subjudiced in the Court. It is
argued that as per charge sheet, the applications for allotment
for the ten vacant plots were received by Shri P.K. Pattanaik, the
then Secretary, B.D.A. except three applications of Anirudha
Patnaik, Rajalaxmi Samal which were forwarded by the Minister -
cum- Chairman and one application of Sanjukta Mohanty was
received by the Section Officer of the Allotment Section. It is
contended that since the plots allotted in favour of Anirudha
Patnaik and Rajlaxmi Samal were out of the remaining
discretionary quota, it cannot be said to be illegal allotment. Mr.
Mohapatra relied upon the note sheet of the allotment file of the
14
concerned plots which indicates that number of applications were
received by the Allotment Section which were scrutinized by the
petitioner Parsuram Biswal and it was found that some of those
were plain applications without any deposit, whereas in some
other applications, initial money was deposited in the B.D.A.
account. The petitioner Parsuram Biswal as per his noting dated
18.08.2000 suggested that the applicants who submitted their
applications with initial deposit may be allotted the plots and
further suggested that appropriate order be obtained from
Chairman, B.D.A. The file was marked to the petitioner Bibhuti
Bhusan Roy, Section Officer who on receipt of the file gave his
view on 19.08.2000 and suggested that since eleven applications
were with initial deposits, out of the nine available plots, the
bigger plots be bifurcated to accommodate all the eleven
applicants and he further observed that approval of the
Chairman be obtained. The file was then placed before the
Allotment Officer Shri Satyabrata Rout for his view who
suggested that all the plain applications along with the eleven
applications containing the deposit be put up for order. In the
conclusion, the Allotment Officer noted that orders may be taken
regarding allotments of plots to the applicants who have
deposited the amount. He signed the note sheet on 21.08.2000
15
and transmitted the file to the Secretary. The Secretary, B.D.A.
Shri P.K. Patnaik passed the order on 24.08.2000 to the effect
that at the relevant time, B.D.A. was following the practice in
allotment on principle of first-cum-first-serve basis and the
applicants who made initial deposits were entitled to take
advantage of the provision. The note sheet suggested bifurcation
of the bigger plots to carve out ten plots out of existing nine
plots and to allot ten applicants who have deposited initial
amount earlier deleting the 11th applicant from consideration and
to intimate the 11th applicant about the non-availability of the
plots and expressing regret for non-consideration of his
application. He further suggested that the ten applicants as serial
nos.1 to 10 be issued with allotment letters and accordingly he
transmitted the file to Vice-Chairman for his consideration and
orders. The Vice-Chairman Shri C.J. Venugopal gave his note on
30.08.2000 and the file was placed before the Chairman who
approved the suggestions and passed the final order for
allotment of ten plots to the ten applicants. Since the 10th
applicant had already received a plot from the discretionary
quota of the Chairman, therefore, he was excluded from the list
and the 11th man was allotted with the plot. It is submitted by
Mr. Mohapatra that the statement of Vice-Chairman of B.D.A.
16
namely Shri C.J. Venugopal was recorded who stated that
generally the plots developed by B.D.A. are not put to auction as
in that case the moneyed people may get the plots depriving the
poor or middle class people. He endorsed the policy i.e. first-
cum-first-serve basis which was prevailing then and marked the
file to Chairman for suitable order and accordingly, the Chairman
took the decision. Mr. Mohapatra highlighted that the ten
beneficiaries in whose favour the lands were allotted have not
been figured as accused in the charge sheet. Some of the
officials and their close relatives who were allotted plots out of
those ten remaining plots have also not been arrayed as
accused. It is further submitted that neither the petitioner
Bibhuti Bhusan Roy nor Parsuram Biswal were authorized to allot
any plot in favour of any person nor authorized to reject the
applications or to show favour to any of the applicants. They
have not suppressed any material facts while preparing their
respective notes and acted as per the prevailing guidelines and
procedure of B.D.A. and never mislead their superior authority to
allot plots in favour of their close relatives. The relatives of the
two petitioners Bibhuti Bhusan Roy and Parsuram Biswal
acquired their right to make applications independently like
many other applicants for getting the left out vacant plots. He
17
argued that the ten plots were not included in the advertisement
as it was not in existence and after the last revision of lay out
plan, those plots came into existence. It is further submitted that
the lay out plan was revised for six times on different dates and
the last one was done in the year 2001. In this context, he relied
upon the statements of Dharanidhar Biswal (C.S.W. 14) and
Prasant Kumar Patnaik (C.S.W. 16). It is submitted that
availability of the ten plots was not only known to the B.D.A.
staff but also to others for which number of applicants applied
for the left out ten vacant plots. The decision making power was
lying with the Secretary and Vice-Chairman of B.D.A. who have
not been arrayed as accused in the case and their decision was
binding on all other sub-ordinate staff of B.D.A. including the
petitioners. He argued that order of taking cognizance and
issuance of process against the petitioners is totally perverse and
if the criminal proceeding is allowed to continue against them, it
would cause serious prejudice to them and therefore, in the
interest of justice, this Court should exercise its inherent powers
under section 482 of Cr.P.C. to quash the impugned order and
the criminal proceeding against the petitioners.
Mr. Niranjan Moharana, learned Addl. Standing
Counsel for the Vigilance Department on the other hand
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submitted that when ten plots remained vacant, no
advertisement for allotment of such plots from the intending
purchasers was made. The relatives of the employees, office
holders and the accused persons in B.D.A. and H. & U.D.
Department submitted applications for allotment of such plots.
There is a prescribed application form which is required to be
obtained by the intending applicant by submitting requisite fees
for the said form from the counter. None of the applications
received for the ten plots was in the prescribed format. The
prescribed form contains certain declaration from the intending
applicants at the time of submission of form in the column
prescribed. The plots were acquired in cheaper rate which caused
loss to the B.D.A. Mr. Moharana however fairly submitted that
the charge sheet is silent as to how many applications were
received for those ten plots and how those applicants apart from
the allottees came to know about the left out ten vacant plots.
He argued that during investigation, it was found out that all the
eleven applicants in which initial deposits were made were the
kith and kin of the B.D.A. staff and since nine plots were
available as one plot was kept without allotment as it was
subjudiced in the Court of law, the accused persons decided to
divide a big plot to make nine plots to ten plots and since
19
applicant no.10 had already been allotted with a plot under the
discretionary quota of the Chairman, the said application was
discarded and ten applications were considered for allotment. It
is submitted that the accused persons who were serving in the
B.D.A. entered into a conspiracy and obtained the left out plots
in the name of their kith and kin in low price which was not
transparent and against public interest. It is submitted that at
the stage of taking cognizance, the Court is required to find out
whether prima facie case is made out for summoning the
accused and it is not the stage to consider the defence version or
whether the materials would lead to conviction or not. The
accused may get a chance at the stage of framing of charge by
filing discharge petition to show that the materials are absolutely
insufficient for framing of charge against him. Learned counsel
submitted that since Government refused to accord sanction for
prosecution against Sri Pradip Kumar Patnaik, Ex-Secretary,
B.D.A., Ashok Tarenai, Personal Secretary to the then Chairman
-cum- Minister, H. & U.D. Department and Bivas Kanungo,
O.S.D., B.D.A. though prima facie material was available against
them, therefore, no charge sheet was filed against them. It is
submitted that if the materials come against other persons
during course of trial, the prosecution would take steps against
20
them by making appropriate application under section 319 of
Cr.P.C. but that cannot be a ground to quash the proceeding
against the petitioners. He pointed out how the kith and kin of
each of the petitioners got one of the left out vacant plots. It is
submitted that the discretionary quota of the Chairman had
already been exhausted and therefore, no allotment could have
been made under that heading. He placed the statements of
witnesses namely Jyoti Prakash Panda, Makardwaja Patsani,
Dharanidhar Biswal, Rehman Ali, Prakash Chandra Patra, Subrat
Kumar Tripathy and Nikunja Bihari Routray and contended that
even though the petitioners were not responsible for the
reduction of the cost of the plots but their involvement in the
crime is prima facie apparent and therefore, there is no illegality
in the impugned order and this Court should not exercise its
inherent powers to quash the same.
5. Adverting to the contention of the learned counsel for
the respective parties and on careful analysis of the materials on
record, it appears that all the five petitioners were serving in
B.D.A. in different posts. The petitioner Parsuram Biswal was the
Dealing Assistant and petitioner Bibhuti Bhusan Ray was the
Section Officer in the Allotment Section of B.D.A. respectively.
The petitioner Rajendra Kumar Samal was the Dealing Assistant
21
in Allotment Section-II, B.D.A. as well as P.A. to the Minister, H.
& U.D. Department. The petitioner Prakash Chandra Patra was
the Junior Assistant in the B.D.A. and the petitioner Pratima
Mohanty was the Steno to the Vice-Chairman, B.D.A.
It is also not in dispute that the Government of
Odisha in G.A. Department alienated Ac.35.120 dec. of land in
favour of B.D.A. for establishing commercial shopping complex
and the entire land was plotted to 379 commercial plots through
six-time revision of the lay out plan. As per charge sheet, after
allotment under different categories, ten plots remained vacant
which were of different sizes.
It is also not in dispute that for those ten vacant
plots, no advertisement inviting tender from intending
purchasers was made and those plots were allotted in favour of
different persons and five of such ten plots were allotted in
favour of the close relatives of each of the petitioners and that to
at a lower price.
It appears that the petitioners Parsuram Biswal and
Bibhuti Bhusan Roy dealt with the allotment file which was
separately initiated in respect of those ten vacant plots and
placed notes giving various suggestions and ultimately those
22
suggestions were accepted with little variation and allotment
order was passed.
Why the B.D.A. authorities decided not to go for
advertisement inviting tender from the intending purchasers in
respect of the ten vacant plots? The statement of the Vice-
Chairman, B.D.A. Shri C.J. Venugopal indicates that when the
allotment file was submitted to him during August 2000 by Shri
P.K. Patnaik, Secretary, B.D.A. with recommendation to allot
plots to some applicants on first-cum-first-serve basis as per
practice norms of B.D.A., the note did not mention whether any
advertisement regarding the vacant plots was made or not and
also about the rate. He further stated that generally the plots
developed by B.D.A. are not put to auction, as in that case, the
moneyed men might get the plots depriving the poor or middle
class people.
If the statement of the Vice-Chairman is taken into
account, it is not understood as to how the poor or middle class
people would come to know about such plots developed by the
B.D.O. if not put to auction. Once the advertisement inviting
tender is not made then very few people who are in the inner
circle of B.D.A. can only know about the existence of such plots
for allotments, in the event of such there is likelihood of genuine
23
persons being deprived of such allotment and also likelihood of
showing favouritism to some of the applicants. This would lead to
unfair practice. Rule 52 of the Odisha Development Authorities
Rules, 1983 (hereafter '1983 Rules') which deals with disposal of
property states, inter alia, that the properties which have been
acquired in pursuance of a scheme shall, as far as possible, be
utilized for the execution of the said scheme. If any property
which has been so required is later found to be surplus for the
purpose of that scheme, the Authority may, subject to any
direction by the State Government, utilize, let out, or dispose of
that property in such manner and subject to such terms and
conditions as the Authority may consider expedient. The rule
further states that subject to any direction by the State
Government, the Authority may dispose of any land acquired by
the State Government and transferred to it, inter alia, after
undertaking and carrying out such development as it thinks fit to
such persons in such manner and subject to such terms and
conditions as it considers expedient for securing the planned
development of the area under its jurisdiction. When
Government of Odisha in G.A. Department alienated the land in
favour of B.D.A. for establishing commercial shopping complex
and after allotment under different categories, ten plots of
24
different sizes remained vacant, there was no earthly reason for
the Authority not to go for fresh advertisement inviting tender
from the intending purchasers or at least seeking for a direction
from the State Government for letting out or disposing of the
property in any particular manner. When the petitioner Parsuram
Biswal initiated a separate file for allotment of the nine vacant
plots of different sizes on 18.08.2000, he has not mentioned as
to why it would not be placed for fresh advertisement. He has
not even mentioned that generally the plots developed by B.D.A.
are not put to auction. He has not kept in view Rule 52 of the
1983 Rules. He has rather suggested that the vacant plots may
be allotted to the applicants who have deposited initial money
with their applications out of the total applications received for
the purpose knowing full well that one of such applicants who
deposited initial money with his application is his nephew
Sivananda Biswal whose application was received on 01.08.2000
by Shri P.K. Patnaik, the then Secretary, B.D.A.
It is not clear as to how the successful allottees or
other applicants, if any, came to know about the availability of
such vacant plots for allotment. How those successful allottees
submitted applications with initial deposits, who fixed the initial
deposit amount and why such deposit was accepted when no
25
procedure has been formulated for accepting such applications
are all shrouded in mystery. Why the other applicants who
submitted plain applications were not told to apply by making
some initial deposits, are the matters which are likely to be
unfolded during trial when material witnesses would be
examined and documents would be proved. At this stage, any
finding in that respect is likely to cause serious prejudice to the
accused persons.
Even though the petitioners appear to have no role in
the fixation of the price of those ten vacant plots at a lower rate
but it cannot be lost sight of the fact that due to such fixation,
the allottees were benefited and equivalent loss was sustained
by B.D.A. The manner in which everything has been stage
managed right from the initiation of a separate allotment file
and done surreptitiously to grant plots to the kith and kin of the
some of the employees of B.D.A. and also those attached to H. &
U.D. Deptt. raises a strong suspicion against their conduct
particularly in view of the post which they were holding. Law is
well settled that even when materials are there on record raising
strong suspicion against an accused, the trial Court would be
justified in framing the charge and thereby giving opportunity to
the prosecution to bring on record the entire evidence in
26
accordance with law so that the case of both the sides may be
considered appropriately on conclusion of trial (Ref.:- (2015)
60 Orissa Criminal Reports (SC) 993, Sonu Gupta -Vrs.-
Deepak Gupta and others).
6. It is not in dispute that the petitioners Pratima
Mohanty, Rajendra Kumar Samal and Prakash Chandra Patra
have not dealt with the allotment file in any manner which was
initiated by petitioner Parsuram Biswal on 18.08.2000. There is
also no material that any of these three petitioners influenced
any co-accused or any officer of B.D.A. or H. & U.D. Deptt. for
getting the plots illegally in favour of their family members.
There is also no material on record that these petitioners had
pre-concert of mind and they made any criminal conspiracy with
the co-accused persons to get the vacant plots. The family
members of the three petitioners in whose favour the lands were
allotted have submitted applications with initial deposit prior to
the initiation of allotment file and therefore, they were not sure
at that time whether they would be favoured with any allotment
order. Only after initiation of allotment file, their pending
applications yielded fruitful result. In view of the definition of
'criminal conspiracy' in section 120-A of the Indian Penal Code,
agreement is the gist of the offence and mere passive
27
cognizance of a conspiracy is not sufficient. To constitute an
offence of criminal conspiracy, there ought to be active
cooperation in furtherance of a joint evil intent. It underlined the
rule of evidence relating to such offence that anything said or
done by anyone of the conspirators, with regard thereto, is
under certain circumstances evidence against the other. The
logic being that within the realm of conspiracy, the position of
the conspirators is analogous to that of partners, one being
considered as the agent of the other. It is held in case of Rajiv
Kumar -Vrs.- State of U.P. reported in 2017 Criminal Law
Journal 4734 that it is extremely difficult to adduce direct
evidence to prove conspiracy and existence of criminal
conspiracy and its objective can be inferred from surrounding
circumstances and the conduct of the accused and in some
cases, indulgence in the illegal act or legal act by illegal means
may be inferred from the knowledge itself. In the present case,
when there is no clinching material that any of these three
petitioners abused their official position and played any specific
role in the allotment of the plots in favour of their family
members, it would not be proper to proceed against them.
Therefore, I am of the humble view that continuance of criminal
proceeding against the petitioners Pratima Mohanty, Rajendra
28
Kumar Samal and Prakash Chandra Patra would amount to abuse
of process of Court and taking cognizance of offence and issuing
process against them is not sustainable in the eye of law and
therefore, invoking my inherent powers under section 482 of
Cr.P.C., I direct quashment of the impugned order in respect of
those three petitioners and the criminal proceeding against
them.
7. So far as the petitioners Parsuram Biswal and Bibhuti
Bhusan Ray are concerned, they were not only the Dealing
Assistant and Section Officer in the Allotment Section of B.D.A.
respectively but played vital role in the institution of the
allotment file for the ten vacant lands and placing favourable
notes for allotment of the vacant plots to the applicants who
have deposited initial money with their applications knowing full
well that one of their family members is the applicant and also
suppressing material facts in it which ultimately resulted in
allotment of the plots in favour of such family member. Since at
the stage of taking cognizance, it is to be seen whether there is
prima facie case against the accused and not whether there is
sufficient ground for conviction which can be determined only at
the trial stage, in view of the available materials on records, it
cannot be said that either the investigating agency has
29
committed any illegality in submitting charge sheet against them
or the learned Special Judge (Vigilance) committed any illegality
in passing the impugned order against them. Even though some
other persons have also played vital roles in the allotment of
vacant plots and they have not been arrayed as accused for want
of sanction for prosecution from the competent authority or for
some other cogent reasons, the same cannot be a ground to
quash the criminal proceeding against these two petitioners.
Therefore, I find no illegality or impropriety in the impugned
order in respect of the two petitioners Parsuram Biswal and
Bibhuti Bhusan Ray.
8. In the result, CRLMC No.3177 of 2017 is allowed and
the criminal proceeding against the petitioner Pratima Mohanty
stands quashed. CRLMC No.4804 of 2015 is allowed in part and
the criminal proceeding in respect of petitioner no.2 Rajendra
Kumar Samal and petitioner no.4 Prakash Chandra Patra stands
quashed, however, the proceeding shall continue in respect of
petitioner no.1 Bibhuti Bhusan Ray and petitioner no.3 Parsuram
Biswal in accordance with law.
Anything said or any observation made in this
judgment shall not influence the mind of the learned trial Court
30
to adjudicate the trial in respect of the co-accused persons in
accordance with law.
..................................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 4th September 2019/Sisir/RKM/Sukanta