Delhi District Court
Cbi vs Virender Kumar Khosla Etc. on 18 October, 2012
CBI vs Virender Kumar Khosla etc.
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 10/12 (Old CC No. 03/11)
RC No. 3(E)/2009/CBI/EOUVII/ND
U/s 120B/218/420 IPC & Sec 13 (2) r/w 13(1)(d) of The PC Act,1988.
Unique ID No. : 02403R0417572009
Central Bureau of Investigation
vs.
(1) Virender Kumar Khosla, S/o Late Sh. R.S. Khosla,
R/o J7, South Extension PartI, New Delhi
(2) Kailash Kumar Meena,S/o Sh. S.L Meena,
R/oRZF513, Sadh Nagar, Palam Colony, New Delhi
(3) Kamal Singh, S/o Sh. Badri Prasad,
R/o Flat No.2, Pocket B, Sector 13, Dwarka, New Delhi
Date of FIR : 13/03/2009
Date of filing of Chargesheet : 14/12/2009
Arguments heard on : 26/09/2012
Date of Judgment : 18/10/2012
Appearances
For prosecution : Sh Anil Tanwar, Ld. Public Prosecutor for CBI.
For accused : Sh Vinod Kumar, Ld. Counsel for A1.
Sh Atul Kumar Sharma, Ld. Counsel for A2 and A3.
JUDGMENT
Adumbrated in brief the facts of case of CBI are as follows:
RC No. 3(E)/2009/CBI/EOUVII/ND 1/69 CBI vs Virender Kumar Khosla etc. On the basis of written complaint of Inspector R.L. Yadav, CBI EOU VII New Delhi, the present FIR was registered on 13/03/2009 against (1) V.K. Khosla (A1), Managing Director of M/s Instyle Motel Services Pvt Ltd; (2) K.K. Meena (A2), AE (B); (3) Kamal Singh (A3), JE (B); (4) H.C. Meena, Executive Engineer (B) and (5) Ashok Kumar, Deputy Commissioner, MCD, Najafgarh Zone, New Delhi and other unknown persons under Section 120 B IPC and Section 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act, 1988.
2. Allegedly A3 and A2 while working as Junior Engineer and Assistant Engineer respectively in September, 2008 entered into criminal conspiracy with A1, owner of Airport Residency Motel by abusing their official position as public servant and dishonestly issued completion certificate on 18/09/2008 despite unauthorized construction of basement and permanent additional structures which were not included in the sanctioned building plan of Airport Residency Motel, Village Samalkha, Dwarka Road, Delhi. The building plan was applied for in the year 2005 on the piece of land owned by A1 and Yogesh Khosla, son of A1, which was sanctioned on 19/07/2006. Both aforesaid owners entered into Memorandum of understanding with M/s Instyle Service Pvt Ltd permitting it to develop and use the land measuring 3.38 acre owned by them in Village Samalkha as a Motel.
3. An application for completion certificate was moved by M/s RC No. 3(E)/2009/CBI/EOUVII/ND 2/69 CBI vs Virender Kumar Khosla etc. Instyle Motel Services Pvt Ltd alongwith documents duly attested by the owner and the architect. Photographs were also submitted which showed that the basement was much above the ground level. Site was inspected by A3 and A2 who prepared No Objection Certificate (NOC) Report on 01/09/2008. A2 recommended said report on 02/09/2008 with a compounding fee of Rs 5,177/. Said report was signed on 04/09/2008 by Sh H.C Sharma, Officiating Executive Engineer and Sh Ashok Kumar, Deputy Commissioner. On the basis of said report, completion certificate number 745, dated 04/09/2008 was issued in favour of M/s Instyle Motel Service Pvt Ltd by A2 on 18/09/2008.
4. On the request of CBI, a team was constituted by SE (Bldg), Head Quarter, MCD, Town Hall for site inspection and the site was inspected on 22/05/2009 onwards. Plans of the existing building were made. Copies of the sanctioned plans were retrieved from the record and then compared with existing plans and then consolidated report showing variance in areas and extent of unauthorized construction was prepared. As per report of report of Technical Committee, there had been unauthorized construction of 65.78 sq. meters beyond permissible limits in the main building out of which only 13.5 meters is compoundable. The basement had been constructed in variance to the sanctioned area and the height was also defected. As per bye laws, any structure can qualify to be called as basement provided it is 0.9 meter to 1.2 meter above surrounding ground level. In this case the sanctioned RC No. 3(E)/2009/CBI/EOUVII/ND 3/69 CBI vs Virender Kumar Khosla etc. height of the basement to the surrounding ground level was only 1 meter but the actual basement was 9 feet10 inches above the ground level at some places. At the time of sanction, total area of the land was 13,447.3 sq. meters whereas actual area found was 13,601.49 sq. meters. Building plan was sanctioned in the name of A1 and Yogesh Khosla but completion certificate was issued in the name of M/s Instyle Motel Service Pvt Ltd. Some permanent additional structures not included in the sanctioned building plan were also found during inspection, including the main basement measuring 117.91 sq. meters, pucca structure measuring 75.03 sq. meters, semi pucca structure measuring 24.49 sq. meters, temporary covered area with AC sheet roofing measuring 186.10 sq. meters and area of stilt frame portion measuring 87.51 sq. meters, meaning thereby the total area of structures measuring 491.04 sq. meters was unauthorized and most of it was falling within the mandatory setbacks.
5. A1 constructed unauthorized construction to justify lower floor as the basement and in connivance with A3 and A2 had made these unauthorized constructions. Completion Certificate was issued by A2 and A3 despite the fact that basement of the property did not qualify to be called as basement and there were large scale non compoundable structures at the site. The technical team of MCD had revealed that height of basement at some places was 9 feet10 inches above the ground level whereas the permissible height of the basement RC No. 3(E)/2009/CBI/EOUVII/ND 4/69 CBI vs Virender Kumar Khosla etc. above the surrounding ground level was maximum 4 feet as per sanctioned building plan. The photographs were also taken which showed that so called basement was actually ground floor and the so called ground floor was the first floor of the Motel with 32 rooms and facilities which were not there in the approved plan. Compounding fee of Rs 5177/ was calculated by A3 by deliberately ignoring large scale unauthorized constructions.
6. Allegedly A1 obtained the completion certificate by misrepresenting the facts that the construction had been carried out as per the sanctioned plan and A3 and A2 in connivance with A1 had abused their official position as public servants and prepared NOC report dated 02/09/2008 on the basis of which incorrect completion certificate was issued on 18/09/2008 dishonestly.
7. On completion of the investigation, chargesheet was filed by the investigating agency on 14/12/2009. The cognizance of the case was taken by my Ld. Predecessor on 13/01/2010 and accused were summoned. On appearance accused were enlarged on bail.
8. Requirements under Section 207 Cr.P.C were complied with.
RC No. 3(E)/2009/CBI/EOUVII/ND 5/69
CBI vs Virender Kumar Khosla etc.
CHARGES
9. In terms of order of charge dated 21/03/2011 of my Ld. Predecessor, charge for offence under Section 120B IPC was framed against all accused. Also charge for offence under Section 218 IPC read with Section 120B IPC and for offence under Section 13 (1)(d) read with Section 13 (2) of Prevention of Corruption Act read with Section 120B IPC was framed against A2 and A3. Also charge for offence under Section 420 IPC read with Section 120B IPC was framed against A1. Also charge for offence under Section 13 (1)(d) read with Section 13 (2) of Prevention of Corruption Act was framed against A2 and A3. Also, charge for offence under Section 420 IPC was framed against A1 on 20/04/2011 by my Ld. Predecessor. The accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
10. To connect the accused persons with the offences charged, prosecution has examined in all 10 witnesses namely Sh Vinod Kumar Tyagi (PW1); Sh R.P. Sharma (PW2); Sh K.S. Mehra (PW3); Sh A.D. Tiwari (PW4); Sh Jagdish Dhyani (PW5); Inspector R.L. Yadav (PW6); Sh Sher Singh Mittal (PW7); Sh. Ram Kishan Meena (PW8); Sh Harish Kumar (PW9) and Sh Yashpal Singh (PW10).
RC No. 3(E)/2009/CBI/EOUVII/ND 6/69
CBI vs Virender Kumar Khosla etc.
STATEMENTS OF ACCUSED
11. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication. Accused Virender Kumar Khosla (A1) admitted of the MCD team having visited the site for inspection on 22/05/2009; videography having been done in the Motel on 24/03/2009 and also of the preparation of cassette of videography Ex P1. Also, accused Virender Kumar Khosla stated that the completion certificate, copy Ex PW1/A and its original in Completion Certificate Book (D3), Ex PW1/B was issued and given to him and it was bearing signature of Kailash Kumar Meena (A2). Also, Virender Kumar Khosla (A1) admitted that he had paid Rs 3472/, the amount deposited for issuance of such completion certificate. Also said accused stated that before issuance of completion/occupation certificate, formalities mandated to be fulfilled were completed and given to MCD department. Also, Virender Kumar Khosla (A1) stated that his architect Vimal Bajaj (DW1) and his associates were looking after the necessary documents issued by MCD while he himself was not involved about the factual measurements of motel site. Also A1 stated that since the measurements of basement and ground floor were checked by his architect and his team to verify that all measurements were according to bye laws of MCD, since as a layman, he had given the responsibility to the architect and his team to ensure that all building was completed as per bye laws of MCD.
RC No. 3(E)/2009/CBI/EOUVII/ND 7/69 CBI vs Virender Kumar Khosla etc. Accused Virender Kumar Khosla (A1) stated that he had not committed any offence but he had been wrongly charge sheeted.
12. Accused Kailash Kumar Meena (A2) stated that the plan was sanctioned by Building Headquarter, MCD; sanction file remained in Building Headquarter and only sanctioned plans come in the Zonal Office, he was not aware of the file of the sanctioned plan since it did not come in their office. Accused Kailash Kumar Meena (A2) admitted that he had issued the completion certificate, copy Ex PW1/A and its original Ex PW1/B, from completion certificate book D3, stating of having so issued it with prior approval of competent authority. Also said accused stated that all required documents and formalities were completed at the time of issuance of completion certificate, all setbacks were cleared as per the sanctioned plan. Accused Kailash Kumar Meena (A2) as well as accused Kamal Singh (A3) also admitted of (1) the fundamental requirement that the building must be constructed as per the sanctioned plan and the deviations, if any within compoundable limits, as per the rules only could be relaxed as per the rules; (2) on the application made by the builder/owner for issuance of completion/occupancy certificate, the file goes to the concerned JE who is supposed to visit the site and conduct the physical verification and submit his report to AE (Civil); (3) AE (Civil) is also mandated to verify the documents and conduct physical inspection of the site and submit a report to Executive Engineer, while Executive Engineer is RC No. 3(E)/2009/CBI/EOUVII/ND 8/69 CBI vs Virender Kumar Khosla etc. supposed to examine the documents and conduct physical inspection and submit his report to the Deputy Commissioner/Superintending Engineer for either recommending the issuance or non issuance of certificate specifying the compounding or non compounding charges if any; (4) after necessary approval, the file goes back to the concerned Executive Engineer who is then supposed to issue the completion certificate under his signatures.
13. Also, A2 and A3 stated that the sanctioned area of the premises in question and permissible area of the premises in question as put forth by the prosecution were correct while as per the said accused the existing covered area of the basement was 1728.79 square meters and existing covered area of ground floor was 1742.45 square meters, existing area of Mumty was 14.73 square meters while sanctioned Mumty was 50.40 square meters. Also, Kailash Kumar Meena (A2) stated that existing covered area of basement and ground floor was within permissible limits.
DEFENCE EVIDENCE
14. All accused entered into their defence. A1 examined Architect Sh Vimal Bajaj as DW1 whereas A2 and A3 examined Sh Kulwant Singh , Head Clerk, MCD, Najafgarh Zone as DW2. DW2 merely stated of A2 and A3 being posted in Najafgarh Zone till 27/02/2009, only on the basis of a photocopy of order dated 27/02/2009 issued from MCD, RC No. 3(E)/2009/CBI/EOUVII/ND 9/69 CBI vs Virender Kumar Khosla etc. Engineering Department, Town Hall, Delhi but was neither able to depose when A2 and A3 were relieved from Najafgarh Zone nor brought on record any admissible documentary evidence to that effect, so was not able to prove said fact.
ARGUMENTS
15. I have heard the arguments of Sh Anil Tanwar, Ld. Public Prosecutor for CBI, Sh Vinod Kumar, Sh Atul Kumar Sharma, Ld. Defence Counsels, the accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
16. Ld. PP for CBI argued that (1) A1 had raised construction of Airport Residency Motel in gross violation of building byelaws and at complete variance from sanctioned plans; (2) alleged basement of said premises was not the actual basement but infact such construction was just 4 feet below the ground level; (3) instead of construction of the sanctioned structures inter alia including 15 rooms, entirely different structures including 32 rooms were raised by A1 in said premises; even constructed total area of structures measuring 491.04 square meters was unauthorised; (4) to justify unauthorized construction of lower floor as basement, ramps were constructed by A1, starting from entry and exit gate of said M/s Instyle Motel Services Pvt Ltd leading to the main entrance which was at the height of more than 10 feet; (5) for large scale deviation from sanctioned plan, no revised plan was RC No. 3(E)/2009/CBI/EOUVII/ND 10/69 CBI vs Virender Kumar Khosla etc. submitted by owner of the land beneath M/s Instyle Motel Services Pvt Ltd; (6) completion certificate was issued by A2 and A3 despite the fact that the constructed lower floor of the property did not qualify to be called as basement and there were large scale non compoundable structures at the site as well as the additional structures beyond compoundable limit being there; (7) inappropriate compounding fee Rs 5177/ was calculated by A3 deliberating ignoring large scale unauthorized construction; (8) the acts of A2 and A3 as well as their conduct sufficed to infer their meeting of minds with A1 for entering into the criminal conspiracy and for such issuance of the completion certificate by A2 and A3. Ld. PP for CBI has prayed for conviction of the accused persons.
17. Ld. Counsel for A1 argued that the graduate accused A1 engaged the services of a qualified architect namely Vimal Bajaj, DW1 for raising of construction of motel namely M/s Instyle Motel Services Pvt Ltd. Also was argued that A1 was not himself knowing the nuances of norms of construction as laid by MCD and availed the services of experts like architect Vimal Bajaj, DW1; Structural Engineer; Contractor etc. Also was argued that the completion certificate was issued in the name of M/s Instyle Motel Services Pvt Ltd, which company has not been arrayed as an accused by the investigating agency/prosecution; for want of said company having been made an accused, there being no provision of fastening vicarious liability on A1 acting as Managing RC No. 3(E)/2009/CBI/EOUVII/ND 11/69 CBI vs Virender Kumar Khosla etc. Director of M/s Instyle Motel Services Pvt Ltd, A1 cannot be made liable as no fiction can be created against him. Reliance was placed upon:
1. Keki Hormusji Gharda and Others vs. Mehervan Rustom Irani and Another, (2009) 6 Supreme Court Cases 475;
2. S.K. Alagh vs. State of Uttar Pradesh and Others, (2008) 5 Supreme Court Cases 662;
3.Aneeta Hada vs M/s Godfather Travels & Tour Pvt Ltd, Criminal Appeal No. 838 of 2008 decided by Supreme Court on 27/04/2012;
4. U.P. Pollution Control Board vs Modi Distillery & Ors., AIR 1988 Supreme Court 1128 .
Also was argued that the onus was on the prosecution to prove that (1) the completion certificate was false; (2) the completion certificate was fabricated; (3) on account of inducement benefit accrued to a private party. It was also argued that herein the beneficiary was M/s Instyle Motel Services Pvt Ltd and not A1 himself. Also was argued that every case of alleged violation of construction contrary to sanction plan does not create criminal liability; had there been violation alleged or discovered inviting prosecution, action could have been taken by the MCD against those violation, as per DMC Act. No action has been taken by MCD against any such violations. Also was argued RC No. 3(E)/2009/CBI/EOUVII/ND 12/69 CBI vs Virender Kumar Khosla etc. that even none of the examined prosecution witnesses could even testify and identify which area amongst constructed area was in violation of the sanctioned plan or building byelaws. Also was argued that DW1 Vimal Bajaj had deposed that (1) the construction was done as per the byelaws and as per the completion drawings submitted to the MCD which did not violate any bye laws and was within the permissible area. Even DW1 was called by CBI in their headquarter and was enquired about the aspect. Ld. Counsel for A1 argued that had there been any criminal intent of DW1 as architect of the project in raising of the construction then he would have also been arrayed as an accused by the investigating agency/prosecution. It was also argued that the prosecution has failed to establish the meeting of minds of A1 with A2 and A3 in any manner whatsoever. Also was argued that till 09/07/2008 neither A2 and A3 were dealing with the case of A1 nor any deficiency was pointed out by MCD. Also was argued that there was no occasion for A1 to enter into any ill conceived conspiracy with co accused nor is it the case of CBI that the submitted completion drawings were wrong nor had A1 withheld any information from MCD, nor A1 had provided any wrong information to MCD. It was also argued that it is an embroidered after thought case of the investigating agency/prosecution without fabric of criminal intention of A1. Acquittal for A1 was prayed for by his Ld. Defence Counsel.
18. Ld. Counsel for A2 and A3 argued that at the stage of RC No. 3(E)/2009/CBI/EOUVII/ND 13/69 CBI vs Virender Kumar Khosla etc. issuance of completion certificate, there was no need to compare the submitted plan of construction with the sanctioned plan while the need was only to compare the covered area. It was also argued that there was no limit to the number of rooms as per building byelaws for motels in rural areas and owner/builder was competent to even partition the structures/rooms within the compoundable limits. It was also argued that at the time of the inspection of premises in question, A2 and A3 had seen the earth berming around the building and even its remnants i.e., lining just 6 inches below the ventilators of the basement could be noticed from the photographs as well as the video cassette on display. It was also argued that there was no surveyor in the inspection team of CBI who could tell the ground level after measurements. Also was argued that the plinth level of the building is to be taken at the same level of middle of the road passing outside the plot where the building was constructed and accordingly the height of the basement is correct as per building byelaws since even DW1 has testified that the premises were in a low lying area approximately 8 feet below the approach road level i.e., Dwarka Link Road. Accordingly, it was argued that in this case also ground level is 4 feet above the 00 level of the road and the basement is 8 feet below this 00 level bench mark. Also was argued that the completion certificate is to be signed by the Executive Engineer and issued by him, even the booklet of completion certificate is maintained by the Executive Engineer; the completion certificate Ex PW1/A and Ex PW1/B, initialed by A3 and signed by A2 were prepared by them and RC No. 3(E)/2009/CBI/EOUVII/ND 14/69 CBI vs Virender Kumar Khosla etc. put over for issuance to the Executive Engineer and had there been any illegalities then Executive Engineer could have rejected their proposals and reports dated 4/09/2008. Also was argued that none of prosecution witnesses deposed of specific violation of building byelaws; even the inspection report of inspecting team was incorrect regarding the quantum of construction as incorrect measurements were taken by incompetent persons. Also was argued that there is not a single witness of prosecution who has directly or indirectly proved of any meeting of minds amongst the accused nor is there any evidence on record of any collusion/conspiracy of accused. It was also argued that all constructions at site were compoundable and even had there been more construction, they could have also been compoundable as per norms. Also was argued that the calcuation of compoundable fees is correct since area in question came in the rural area. Ld. Counsel has relied upon the following precedents:
1. M.W. Mohiuddin vs. State of Maharashtra, (1995) 3 Supreme Court Cases 567;
2. Major S.K. Kale vs State of Maharashtra, AIR 1977 Supreme Court 822;
3. State of Maharashtra and Others vs Som Nath Thapa and Others, (1996) 4 Supreme Court Cases 659.
Ld. Defence Counsel of A2 and A3 has prayed for acquittal of A2 and A3.
RC No. 3(E)/2009/CBI/EOUVII/ND 15/69
CBI vs Virender Kumar Khosla etc.
19. The then applicable relevant extracts of Delhi Building
Byelaws 1983 (herein after called as BBL) published in Extraordinary Part IV of Delhi Gazette by Delhi Administration vide SO no. 104, dated 23/06/1983 and as applicable to MCD are as follows:
"3.2 Where a building is erected, the Byelaw applies to the design and construction of the building."
"5. Building Permit Required 5.1 No person shall erect, reerect or make alterations or demolish any building or cause the same to be done without first obtaining a separate building permit for each such building from the Authority."
"6. Procedure for Obtaining Building Permit 6.1 Notice Every person who intends to erect, reerect or make alterations in any place in a building or demolish any building shall give notice in writing to the Authority of his said intention in the prescribed form (See Appendix A) and such notice shall be accompanied by plans and statements in sufficient (SeeByeLaws No. 6.1.1) copies, as required under Byelaw Nos. 6.2 and 6.3. The plans may be ordinary prints on ferro paper or any other type. One of them shall be cloth mounted. One set of such plans shall be released and the rest retained in the office of the Authority for record after the issue of permit or a refusal."
"6.2.9 DocumentApplication for building permit shall be accompanied by the following documents:
a) Ownership DocumentsLeasedeed saledeed etc. duly accompanied by an annexed site plan giving the physical description of the plot/property. In such cases where lease deed has not been executed, no objection certificate from the Competent Authority shall be submitted"
RC No. 3(E)/2009/CBI/EOUVII/ND 16/69 CBI vs Virender Kumar Khosla etc. "7. Procedure During Construction Work 7.1 Neither the granting of the permit nor the approval of the drawings and specifications, nor inspection made by the Authority during erection of the building shall in any way relieve the owner of such building from full responsibility for carrying out the work in accordance with the requirements of the byelaws."
"7.4 Deviations during ConstructionIf during the construction of a building any substantial departure from the sanctioned plan is intended to be made by way of internal alternations or external additions, sanction of the Authority shall be obtained. The revised plan showing the deviations shall be submitted and the procedure laid down for the original plan heretofore shall apply to all such amended plans."
"7.5.1 Occupation of BuildingNo person shall occupy or allow any other person to occupy any building or part of a building for any purpose until such building or part has been granted the occupancy certificate."
"7.5.2 Notice of CompletionEvery owner shall have to submit a notice of completion of the building to the Authority regarding completion of the work described in the building permit. The notice of completion shall be submitted by the owner through the licensed Architect/Engineer/Supervisor/ Group as the case may be who has supervised the construction, in the proforma given in Appendix 'G' accompanied by three copies of completion plan and the following documents and alongwith a fee of Rs. 20.
1) Copy of lease deed.
2) Copy of sewer connection permission.
3) Clearance from Chief Fire Officer, Delhi.
4) Clearance from Chief Controller of Explosives,
Nagpur, as required.
5) Clearance from DESU regarding provision of
Transformers/Substation/ancillary power supply RC No. 3(E)/2009/CBI/EOUVII/ND 17/69 CBI vs Virender Kumar Khosla etc. system etc. as required.
6) Structural stability certificate duly signed by the licensed Architect/Engineer.
7) Certificate from the Lift Manufacturer, as required.
8) Certificate from Airconditioning Engineer, Manufacturers as required.
9) A certificate by the owner and architect/supervisor/ engineer for covering up the underground drain, sanitary and water supply work, under their supervision and in accordance with Building ByeLaws and sanctioned building plans stipulated in the Appendix B3 as applicable.
10) In case of large campus/complex, completion of individual block/building will be issued by the local body in accordance with the construction work completed phase wise in the Proforma Appendix B3.
11) The Extension of Time up to the date of applying for completion certificate. In case, if the completion certificate is refused due to deviation, which cannot be compounded, the completion will be rejected and extension of time will be required accordingly.
12) NOC for regular water supply and electricity may be issued only after the completion certificate is obtained."
"7.6 Occupancy CertificateThe Authority, on receipt of the notice of completion, shall inspect the work and communicate the sanction or refusal or objections thereto in the proforma given in Appendix 'H' within 60 days from the date of receipt of Notice of Completion. If nothing is communicated within this period, it shall be deemed to have been approved by the Authority for occupation. Where the occupancy certificate is refused, the various reasons shall be quoted for rejecting at the first instance itself."
"14.12.2 The basement shall have the following requirements:
.................
6) The minimum height of the ceiling of any
RC No. 3(E)/2009/CBI/EOUVII/ND 18/69
CBI vs Virender Kumar Khosla etc.
basement shall be 0.9 m and maximum of 1.2 m above the average surrounding ground level.
(vi) The access to the basement shall be separate from the main and alternate staircase providing access and exit from higher floors. Where the staircase is continuous the same shall be enclosed type serving as a fire separation from the basement floor and higher floors. Open ramps shall be permitted if they are constructed within the building line subject to the provision of (iv)."
"2.9 Basement of CellarThe lower storey of a building below or partly below ground level."
"2.10 BuildingAny structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used as human habitation or not and includes foundation, plinth walls, roofs, chimneys, plumbing and building services, fixed platforms, verandahs, balcony,cornice or projection part of a building or anything affixed thereto or any wall enclosing or intended to enclose any land or space and signs and outdoor display structures, monuments, memorial or contrivance of permanent nature/stability built under or over ground."
"2.11 Building, Height ofThe vertical distance measure in the case of flat roofs, from the average level of the centre line of the adjoining street to the highest point of the building adjacent to the streetwall, and in the case of pitchedroofs, upto the point where the external surface of the outer wall intersects the finished surface of the sloping roof, and in the case of gables facing the road, the midpoint between the caves level and the ridge. Architectural features serving no other function except that of decoration shall be excluded for the purpose of taking heights. If the building does not abut on a street, the height shall be measured above the average level of the ground around and contiguous to the building."
"2.84 To Abut To be positioned juxtaposed (put side by side) to a road, lane open space, building etc."
RC No. 3(E)/2009/CBI/EOUVII/ND 19/69 CBI vs Virender Kumar Khosla etc. "2.56 OwnerThe owner is a person, group of persons, a Company, Trust, Institute, Registered Body, State or Central Government and its attached subordinate Departments, Undertakings and like in whose name the property stands registered in the revenue records."
"APPENDIX 'Q' PENAL ACTION FOR VIOLATION OF PROVISIONS OF MASTER PLAN/ZONAL PLAN REGULATIONS/BYE LAWS (A) NonCompoundable Items
(i) Any deviations from the maximum/minimum prescribed limits regarding (1) Coverage (2) F.A.R. (3) Setback (4) Open spaces (5) Total height of the building (6) No. of floors (7) No. of D.U.s & density (8) Parking norms (9) Light and ventilation provisions (10) Use (11) All other provisions of the bye laws except items given in para "B"
below shall not be compounded/ regularized and shall have to be rectified by altering/demolition at the risk and cost of owner. Besides this any other action as per terms and conditions of lease and provisions of Delhi Development Act 1957 (also DMC Act) shall proceed."
(B) Compoundable Items
(i) Deviations in terms of covered area If a building or part thereof has been constructed unauthorisedly i.e. without obtaining the requisite building permit from the authority as RC No. 3(E)/2009/CBI/EOUVII/ND 20/69 CBI vs Virender Kumar Khosla etc. required under clauses 6.1 and 6.7.1 of the Building Byelaws, the same shall be compounded at the following rates provided the building or part thereof so constructed otherwise conforms to the provisions contained in the Building ByeLaws and Master/Zonal Plan regulations. For this party shall have to submit the request for building permit in the prescribed procedure."
......................
"(ii) Deviation of the building Byelaws other than as specified in (A)(NonCompoundable) Deviation upto the maximum extent of 10% from the maximum/ minimum prescribed limit (as prescribed by the building byelaws) shall be compounded at the following rates: .............................
(l) Partitions walls provided without sanction at any floor if the same are not infringing upon the provisions of any other bye laws............. Rs 15 per sq.m. of the surface area of the wall i.e. (length X height)."
20. DW1 deposed that he met Mr. Khosla (A1) through a common friend in December, 2006 wherein he (A1) told him that he (A1) wanted to construct a Motel through his company Instyle Motels; the plans were already sanctioned when DW1 met A1 and they started the construction in January, 2007. DW1 stated that he was the Architect who supervised the construction since inception throughout the tenure of the project till completion. Also DW1 deposed that in May, 2007, when they reached the basement roof level which is the plinth level, they applied for the plinth level certificate which is called the B2 certificate and after the inspection from the MCD officials, they were granted the B2 certificate i.e. to say that all the construction of the basement was in accordance with the sanctioned plans and within the bye laws of MCD RC No. 3(E)/2009/CBI/EOUVII/ND 21/69 CBI vs Virender Kumar Khosla etc. and there were no violations. DW1 also deposed that in December, 2007, they casted the roof of the ground floor also thereby completing the structure part and further in June 2008, they finished the interiors of the building also; after this, they applied for completion certificate to MCD. After applying for completion certificate, they (DW1 and A1) received a notice from MCD on 9th of July, stating the deficiencies in their document. On receipt of this letter, on 16th of July, 2008, they (DW1 and A1) complied with all the requirements mentioned in the letter by the MCD including the Architects Supervision Certificate. The said letter dated 09.07.08 from the MCD indicating the deficiencies is PW10/DX. The reply to the said letter was sent by M/s. Instyle Motels Services Pvt. Ltd. vide their (DW1 and A1) letter dated 22.07.08. The said reply was prepared by DW1, though the same was signed by Mr. V. K. Khosla (A1) on behalf of the said company and the same with annexures is Ex. DW1/A (Colly). DW1 identified the signatures of Mr. V. K. Khosla on aforesaid documents. The aforesaid reply with annexures, Ex DW1/A (Colly) is the part of the file of MCD as D2. With the reply, DW1 had also annexed all the documents which were concerning the matter in issue. DW1 had proved his certificate dated 16.07.08 which is part of Ex. DW1/A (Colly). DW1 further deposed that when they (DW1 and A1) applied for the completion certificate, DW1 prepared a completion drawing as per the requirements of MCD and this drawing was exactly as what they (DW1 and A1) had constructed at site. The said plan Ex. DW1/B is part of MCD file as D2.
RC No. 3(E)/2009/CBI/EOUVII/ND 22/69 CBI vs Virender Kumar Khosla etc.
21. As per PW1, the document D4, the Completion Certificate Register for the period 14/05/2004 to 18/12/2008 contained an entry at Sl. No. 64 (at page 7) in regard to completion of work of M/s Instyle Motel Service (P) Ltd. Village Samalkha, New Delhi whereby the completion certificate was applied for by A1 by depositing the requisite amount of Rs 3472/. Even A1 admitted of deposit of said amount for issuance of completion certificate.
22. PW1 deposed that before issuance of completion/occupation certificate various formalities were mandated to be fulfilled viz. the building must be structurally complete with solid foundation, complete in regard to civil and electrical work, having NOC from fire services, structure stability certificate from Structure Engineer, Supervision Certificate from the Architect and maintain set backs as per the sanctioned plan; also there are requirement such as ventilation, supply of water, drainage system etc.
23. PW1 further deposed that the fundamental requirement is that the building must be constructed as per the sanctioned plan and the deviations, if any within compoundable limits only could be relaxed as per the rules; on the application made by the builder/owner for issuance of completion/occupancy certificate, the file goes to the concerned JE who is supposed to visit the site and conduct the physical verification and the JE is enjoined upon to submit his report to AE (Civil); AE RC No. 3(E)/2009/CBI/EOUVII/ND 23/69 CBI vs Virender Kumar Khosla etc. (Civil) is also mandated to verify the documents and conduct physical inspection of the site and submit a report to Ex. En.; similarly the Ex. En. is supposed to examine the documents and conduct physical inspection wherever necessary and submit his report to the Deputy Commissioner/ Superintending Engineer inter alia recommending the issuance or non issuance of certificate specifying the compounding or non compounding charges if any; after necessary approval, the file goes back to the concerned Ex. En. who is then supposed to issue the completion certificate under his signatures.
24. PW2, Assistant Engineer in MCD, deposed that the file (D7) called the Sanction Building Plan file contained at page no. 59 the NOC, Ex PW2/A issued by Chief Fire officer on 12/12/2005 addressed to Executive Engineer (Building), MCD HQ., Town Hall, Delhi; at page no. 100 of the said file (D7) is the NOC Ex PW2/B issued by Airport Authority; at page no. 113 of the said file (D7) is the NOC Ex PW2/C issued by Naib Tehsildar, District South West, Delhi; at page no. 121 of the said file (D7) is the sanction letter Ex PW2/D in respect of the property bearing Khasra no. 5/21/1/2, 8/1, 8/10 and 8/9 of Village Samlaka, New Delhi for construction of Motel Building; the sanction building plan at points A at page 131, 135,137,139 and 141 of file (D7) bear signature of R.P Sharma (PW2), the then Junior Engineer (JE) in MCD and finally it was issued by Jagdish Dhyani (PW5), the then Assistant Engineer (AE).
RC No. 3(E)/2009/CBI/EOUVII/ND 24/69 CBI vs Virender Kumar Khosla etc.
25. PW1, Officiating Executive Engineer in the Building Department, Najafgarh Zone of MCD deposed that the completion file (D2) bearing no. 64/CC/EE (B) NGZ/08, dated 04/07/2008 in favour of M/s Instyle Motel Services (P) Ltd. contained completion certificate Ex PW1/A, dated 18/09/2008 which was issued under signature of A2, the then AE Building, MCD, Najafgarh Zone.
26. PW1 further deposed that the completion certificate book (D3) contained the completion certificate Ex PW1/B at Sl. No. 745, dated 18/09/2008 which was the original of Ex PW1/A and therein details of accommodation had been mentioned by A2.
27. PW6 deposed that on 24/12/2008 a joint team of CBI officials and MCD Vigilance officials with two independent witnesses inter alia Inspector R.L Yadav (PW6) of CBI, Pushkar Raj from MCD (Vigilance), another official from MCD (Vigilance), one official from NAFED, one official from NSIC and P.K Gautam from CFSL, New Delhi conducted inspection regarding the source matter as alleged in inspection cum observation memo, copy Ex PW6/A at Rajokri, Airport Motel behind Airport, IGI, New Delhi, Dwarka, Palam. Such inspection was carried out on the information which was that unauthorized construction had been carried out in Airport Residency belonging to Instyle Services (P) Ltd and premature completion certificate had been RC No. 3(E)/2009/CBI/EOUVII/ND 25/69 CBI vs Virender Kumar Khosla etc. granted; besides that other allegation was that no basement was constructed instead of which ground floor and first floor were constructed by the owner. PW6 further deposed that Mr. Gautam deputed from CFSL conducted videography of the entire construction while the inspecting team prepared inspectioncumobservation memo, copy Ex PW6/A. On the basis of the inspectioncumobservation memo Ex PW6/A, Inspector R.L Yadav (PW6) filed a complaint, dated 12/03/2009, Ex PW6/B with SP concerned. The case RC 3(E)/09/EOU VI, CBI, New Delhi was registered on 13/03/2009, the FIR (D1) is Ex PW10/A.
28. PW4 deposed that on 24/03/2009 from 4 pm to 6.10 pm in the presence of S.K Bhatia and Rana Ranjit Singh, the two independent witnesses, he himself (PW4), Senior Scientific Officer, GradeII, (Photo), CFSL, Lodhi Road, New Delhi had taken videography of Hotel/Motel Airport Residency from outside and inside, on the direction of CBI; at which time CBI officials, one staff of Hotel/Motel were present; proceedings were recorded by Inspector CBI in document D14, Ex PW4/A; cassette of videography bearing description as Sony Album MP 120 prepared by A.D Tiwari (PW4) is Ex P1; the inlay card is Ex P2.
29. PW8 deposed that while working as Photographer and Lab Assistant, CFSL, Lodhi Colony on 24/03/2009 in the evening he had visited Airport Residency Motel situated at Delhi Jaipur National RC No. 3(E)/2009/CBI/EOUVII/ND 26/69 CBI vs Virender Kumar Khosla etc. Highway near the Airport; used digital camera to take photographs; developed photographs Ex P1 to Ex P22 and handed them over to Sh Asudev Tiwari, the then Senior Scientific Officer, GradeII, CFSL, Photo Division, New Delhi.
30. Investigating Officer PW10 deposed that vide letter dated 13/05/09 (D5), Ex PW10/B issued by Superintendent Engineer, Building, Head Quarter MCD, Delhi, a team of MCD engineers was constituted to assist the CBI. PW10 further deposed that vide productioncumreceipt memo (D9), Ex PW10/D, dated 13/05/2009 he (PW10) received documents mentioned therein from Vinod Kumar Tyagi (PW1), officiating Executive Engineer, MCD, Building Department, Najafgarh Zone, New Delhi. PW5 deposed that the letter Ex PW5/A, dated 13/05/2009 was signed by Sh Devender Singh, Superintending Engineer (Building), Headquarter.
31. PW10 deposed that during the course of investigation, on the request of CBI to Superintendent Engineer,(Building) HQ, MCD Town Hall, Delhi a team was constituted comprising of Jagdish Dhyani (PW5), M.R Mittal, Sher Singh (PW7) and A.K Mittal for verifying the status of the building and as to whether there was any deviation in the building constructed and the sanction plan; Inspector Yashpal Singh (PW10) visited the site alongwith the inspecting team on 22/05/2009; the report Ex PW5/D (D11) was filed by inspecting team.
RC No. 3(E)/2009/CBI/EOUVII/ND 27/69 CBI vs Virender Kumar Khosla etc.
32. PW7 deposed that in July, 2009 a team was constituted on the direction of Sh Devender Singh, Superintending Engineer (Bldg) HQ MCD consisting of Jagdish Dhyani (PW5), A.K Mittal, AE (Building), Sher Singh (PW7), Architect and M.R Mittal, Ex. En of Lab. Department, who was the team incharge and the said team visited the site and inspected it; detailed inspection report Ex PW5/B (i.e., Annexure A, Ex PW5/B1 and Annexure B, Ex PW5/B2 running into three pages) was prepared by Architect Sher Singh (PW7) .
33. PW 7 deposed that as per the inspection report, part of document D11, Ex PW5/B (i.e., Annexure A, Ex PW5/B1), the permissible covered area of basement was 1742.89 sq. meters and sanctioned covered area as per the sanctioned building plan was 1712.51 sq. meters and existing covered area of the basement was 1745.39 sq. meters and covered area beyond sanctioned but within permissible limit was 30.38 square meters, excess area beyond permissible limit was 2.5 square meters; the existing covered area of the stilt was found 30.38 square meters; the permissible covered area of the ground floor was 1742.89 square meters and sanctioned covered area as per the sanctioned building plan was 1712.51 square meters and existing covered area of ground floor was 1791.44 square meters and covered area beyond sanctioned but within permissible limit was 30.38 square meters and excess area beyond permissible limit was 48.55 square meters; the RC No. 3(E)/2009/CBI/EOUVII/ND 28/69 CBI vs Virender Kumar Khosla etc. sanctioned covered area of the first floor was 50.40 square meters as per the sanctioned plan and existing covered area of the first floor was 14.73 square meters and covered area beyond sanctioned but within permissible limit was 50.40 square meters and excess area beyond permissible limit was 14.73 square meters; the total permissible covered area was 3485.78 square meters and sanctioned covered area as per sanctioned building plan was 3475.42 square meters and existing covered area was 3551.56 square meters except stilt and covered area beyond sanctioned but within permissible limit was 10.36 square meters and excess area beyond permissible limit was 65.78 square meters; only 13.5 square meters area was within compoundable limits. PW7 further deposed that the site plans (four in numbers), Ex PW5/C (colly), part of document D11 were prepared by Sher Singh (PW7), Architect at the spot .
34. PW10 deposed that Sh V.P Sharma, the then SP, CBI issued letter (D6), Ex PW10/C, dated 08/06/2009. PW10 further deposed that vide productioncumreceipt memo (D10), Ex PW10/E, dated 06/08/2009 he (PW10) had taken from R.P Sharma (PW2), Assistant Engineer MCD (Building), Headquarter MCD, Town Hall, Delhi the original building plan file no. 3235/B/HQ/2005, dated 25/07/2005 regarding construction of Motel on Khasra nos. 8/9, 5/21/1/2, 8/1, 8/10 Village Samalkha, New Delhi in favour of A1 and his son Yogesh Khosla containing pages 1/N to 26/N in the noting side and from page RC No. 3(E)/2009/CBI/EOUVII/ND 29/69 CBI vs Virender Kumar Khosla etc. nos. 1 to 145 in the documents side which contained all the documents including revenue documents in original, sanctioned building plan and affidavits and I bonds.
35. PW5, Assistant Engineer, deposed that that after completion of the entire report, he (PW5), forwarded his report alongwith all details i.e., Annexure A and B to Executive Engineer, Civil Line Zone on 21/07/2009 through forwarding letter Ex PW5/D.
36. PW9, the then Patwari of Village Samalkha, Tehsil Vasant Vihar, District South West, New Delhi deposed that in August, 2009 he (PW9), prepared the details as mentioned in the D8, Ex PW9/A from the original Khatoni Register of Village Samalkha regarding khata nos. 158, 208 and 248 and other details, which document also bears signature of Sh Surender Kumar Sharma, the then Tehsildar, Vasant Vihar, New Delhi at point B. As per said document, Ex PW9/A, A1 as well as his son Yogesh Khosla were the joint owners of the land in question beneath Airport Residency Motel, in respect of which the completion certificate was applied by A1as Director of M/s Instyle Motel Services Private Ltd.
37. A1 and his son Yogesh Khosla jointly had applied for sanction of plans to MCD for aforesaid premises, pursuant to which the plans were so sanctioned as is borne out from such sanctioned plans at pages 131, 135, 137, 139 and 141 of file D7, as testified by PW2.
RC No. 3(E)/2009/CBI/EOUVII/ND 30/69 CBI vs Virender Kumar Khosla etc.
38. Admittedly A1 deposited Rs 3472/ on 04/07/08 as fees for issuance of completion certificate detailed in entry dated 04/07/2008 at serial no. 64 (at page 7) of the completion certificate register D4.
39. Notice/letter dated 09/07/08, Ex PW10/DX was issued by Assistant Engineer (Bldg.), Najafgarh Zone for submission of more documents inter alia with the mention of other compliances to be made as per BBL. Said notice was received by A1, as per DW1. As per DW1, they (DW1 and A1) complied with all requirements mentioned in the letter by the MCD and reply Ex DW1/A (colly) was prepared by DW1 and signed by A1 on behalf of M/s Instyle Motel Services Pvt Ltd and deposited in MCD with annexures. File D2 titled Completion File inter alia contains documents Ex DW1/A (colly) as well as the plans submitted showing the raised construction. Ex DW1/A (colly) also contained the request for deputing officers by MCD for inspection of the premises. BBL no. 7.5.2 enjoins duty to every owner inter alia to furnish the documents detailed therein with notice of completion of building to the authority regarding completion of the work described in the building permit. Ex DW1/A (colly) inter alia contained the photocopy of notarized but unregistered Memorandum of Understanding, dated 15/11/2007 between A1, his son Yogesh Khosla jointly as first party and M/s Instyle Motel Services Pvt Ltd., a company as second party. The said Memorandum of Understanding conveys a licence to aforesaid company RC No. 3(E)/2009/CBI/EOUVII/ND 31/69 CBI vs Virender Kumar Khosla etc. in respect of the property in question for a period of five years but embodies no covenant that in any manner any title of the land/property in question has been conveyed to the aforesaid company in any manner whatsoever nor is the second party authorized to apply and obtain the completion certificate of the building erected in the premises in question from the MCD. Memorandum of Association of aforesaid company forms part of Ex DW1/A (colly) wherein at page 13 it finds mention of A1 having 9900 equity shares and Ms. Indrani Malhotra (apparently sister of A1) having 100 equity shares in the aforesaid company out of the total 10,000 shares of said company.
40. It is admitted fact that (1) plans were got sanctioned from MCD by A1 and his son Yogesh Khosla jointly; (2) completion certificate was applied by A1 in the name of M/s Instyle Motel Services Pvt Ltd.
41. In the case at hand there are three set of plans on record. One submitted by A1 which were sanctioned by MCD i.e., at pages 131, 135, 137, 139 and 141 of file D7 (herein after called sanction plans), as deposed by PW2. The second set of plans is Ex DW1/B in the completion file D2 as prepared by DW1 and submitted by A1 for M/s Instyle Motel Services Pvt Ltd for issuance of completion certificate. The third set of plans (four in numbers) Ex PW5/C (colly), part of D11 were prepared by architect Sher Singh PW7 and proved on record to be RC No. 3(E)/2009/CBI/EOUVII/ND 32/69 CBI vs Virender Kumar Khosla etc. the plans of the actual construction at the premises in question found on inspection of said premises in May, 2009 onwards.
42. As per sanction plans, there is mention of 13 guest rooms each of size 16' X 20' (including one toilet each); one guest room of size 16' X 20'3" (including toilet) and one guest room of size 16' X 16' (including toilet) i.e., 15 guest rooms in all and besides them four staircases on four sides (in between rooms); 4 service shops 18' X 10' each (total area 71.27 square meters); having verandah 6 feet wide on whose only one side are aforesaid guest rooms. Also is mention there of reception hall 57'X50'7½"(in center); waiting lobby of size 40' X 25'6"
(on left side); restaurant 45' X 25.6"(on right side); kitchen 24' X 18'7½"; ramp 1.8 meter wide on right side; the stairs at main entrance, starting from building line; one store of size 13'3" X 13'6" and three toilets. Sanction letter Ex PW2/D is on record with aforesaid sanction plans. In the sanction plans of basement, there is mention of basement level 7 feet below ground level and 4 feet above ground level. The sanction plans also finds mention of the elevation of the building to be of height below ground level to be 7 feet and above ground level to be 19'3".
43. In the plans Ex DW1/B submitted for issuance of completion certificate, there is mention of 32 rooms having one toilet each; on the left and right side 8 rooms each are depicted. In between said 8 rooms on left side as well as on the right side there is corridor 6 RC No. 3(E)/2009/CBI/EOUVII/ND 33/69 CBI vs Virender Kumar Khosla etc. feet wide i.e., on both sides of the corridor there are 4 rooms each on left side as well as on right side. 6 rooms are shown on the left side of main entrance while a corridor 6 feet wide is also shown. Also, 9 meter wide ramp from the entry gate to exit gate in reverse U shape is laid. Three stairs are also shown. Sites/scheme of stairs is entirely different from sanction plans. Aforesaid 9 meter wide ramp finds no existence in the sanction plans.
44. Ex PW5/C (colly) inter alia depict 32 rooms (having one toilet each). On left and right side are 8 rooms each and between 8 rooms on left side as well as on right side, there is corridor shown 5'10"
wide. 6 rooms are shown on the left side of the main entrance with corridor 5'10" wide in between them. 10 rooms are shown at the back side having size 11'8" X 15'9½" each (including one toilet each). Aforesaid 8 rooms on the left side are shown to be of size 16'9" X 12' (including one toilet each). 8 rooms on the right side are stated to be of size 16'1½" X 14'9" (including one toilet each). 6 rooms on the left side of the main entrance are stated to be of size 14'9" X 16' (having one toilet each) and are at the similar location of waiting lobby shown in the sanction plans. There is no restaurant depicted in Ex PW5/C (colly). Even there is no mention of restaurant in plan Ex DW1/B. Ex PW5/C (colly) depict the basement having height 4 feet below the ground level and 9'10" above ground level. Ex PW5/C (colly) also depict that the premises constructed were having height 23'3" above ground level and RC No. 3(E)/2009/CBI/EOUVII/ND 34/69 CBI vs Virender Kumar Khosla etc. height 4 feet below ground level.
45. Aforesaid elicited facts and even a glance of sanction plans on being compared with Ex DW1/B as well as Ex PW5/C (colly) depict that the construction admitted to be raised by A1 as per Ex DW1/B and found to be raised as per inspecting team including PW5 and PW7 in plans Ex PW5/C (colly) prepared by PW7 was at complete variance. The basic structure of the sanction plans was not adhered to. 32 rooms constructed by no figment of imagination can be qualified to be coming in the ambit of out come of any partitions, as permissible in Appendix 'Q' (B)(ii)(l) of BBL. Sanction plans embodied construction of four rooms each on the left and right side and these were on only one side of the 6 feet wide verandah. 8 rooms each on left and right side depicted in Ex DW1/B and Ex PW5/C (colly) had a verandah. Such verandah was in between the 8 rooms on right side as well as left side. 4 rooms each were on the both sides of the said verandah. Mere partitions alone in 15 guest rooms cannot bring into existence afore stated structures of 32 rooms, etc. in Ex PW5/C (colly) and Ex DW1/B. Accordingly, large scale deviations and infact raising of construction per contra to the basic structure of sanction building plans is apparent and proved on the face of record.
46. As per BBL no. 7.4, the sanction of MCD was to be obtained for such deviations and substantial departure from the RC No. 3(E)/2009/CBI/EOUVII/ND 35/69 CBI vs Virender Kumar Khosla etc. sanctioned plan during the construction of the building and revised plan showing such deviations was to be submitted and the procedure laid down for the original plan was to be followed for amended plans. Admittedly, no revised plan showing such deviations was ever submitted to MCD by A1 along with or without his son coowner Yogesh Khosla as well as by M/s Instyle Motel Services Pvt Ltd. Since A1 was coowner of the property in question in the revenue records of the property, as per PW8 and he being the person who submitted and obtained the sanctioned plans, so as per BBL no 7.1, A1 was fully responsible for carrying out the works in accordance with the requirements of the byelaws. A1 cannot shirk from his such responsibility on mere plea of having entrusted such construction work to architect DW1, Structural Engineer, Contractor and others. As per BBL no. 7.1, the owner of said building was fully responsible to carry out the work in accordance with the requirements of the byelaws. BBL no. 6.2.9 enjoined accompanying of ownership documents like Lease Deed, Sale Deed etc., site plan with the application for building permit. In the case where there was no lease deed executed then such applicant was to furnish the no objection certificate from the competent authority. As per BBL no. 7.5.2, it is the owner who is enjoined to submit a notice of completion of the building to the Authority regarding completion of the work described in the building permit. Admittedly, A 1 and his son Yogesh Khosla jointly as coowners or severally did not submit a notice of completion of the building to the Authority RC No. 3(E)/2009/CBI/EOUVII/ND 36/69 CBI vs Virender Kumar Khosla etc. regarding completion of the work described in the building permit. Annexing photocopy of Memorandum of Understanding, elicited above of M/s Instyle Motel Services Pvt Ltd amongst documents Ex DW1/A (colly), as Director of said company, A1 replied to the notice Ex PW10/DX of MCD, later to depositing of charges of Rs. 3472/ for obtaining completion certificate. A1 cannot be absolved of his responsibility elicited above and embodied in BBL no. 7.1 nor can he take shelter behind the plea of the beneficiary of completion certificate being M/s Instyle Motel Services Pvt Ltd and not A1 himself or that it was the said company who applied through A1 for grant of completion certificate. There is no material on record proved that title of the property in question devolved upon M/s Instyle Motel Services Pvt Ltd at any point of time or said company being in any manner whatsoever entitled to apply and obtain the completion certificate from MCD. Non arraigning of M/s Instyle Motel Services Pvt Ltd as accused is not fatal to prosecution case. Facts and circumstances embodied in the cases of Keki Hormusji Gharda (Supra); S.K. Alagh (Supra); Aneeta Hada (Supra) and U.P. Pollution Control Board (Supra) are entirely different from the facts and circumstances of case in hand and are of no help to absolve the liability of A1 fastened upon him by BBL no. 7.1. It also cannot be said that by obtaining completion certificate A1 was not gainer or in other words the actual gainer was M/s Instyle Motel Services Pvt Ltd. Being coowner in revenue records, being the person enjoying the licence fees from the licensee M/s Instyle Motel Services RC No. 3(E)/2009/CBI/EOUVII/ND 37/69 CBI vs Virender Kumar Khosla etc. Pvt Ltd for running motel, for which completion certificate was a prerequisite, infact A1 was the gainer, besides his son Yogesh Khosla, the other coowner of the property in question. Ignorance of law cannot be made a bliss or a shield to evade criminal or civil liability by Graduate A1, a Senior Citizen. Fact remains, even a layman can understand such blatant and apparent violations interse sanction plans and plans submitted to obtain completion certificate. Mere simultaneous glance of such plans makes vivid the blatant violations in construction of structures in premises in question from the plans sanctioned, elicited herein before.
47. Other facet of the matter is whether the erected lower floor of the premises in question is a basement floor or ground floor.
48. DW1 deposed that the site of the property in question was a peculiar case because it is a low lying area approximately 8 feet below the approach road level which is the Dwarka Link Road and they always considered the bench mark for any construction as the centre of the road and all the levels of the plinth were calculated taking the bench mark as 00 level and in this case also the ground level as 4 feet above the 00 of the road level which was taken as the bench mark level alleged to be permissible in the bye laws. DW1 stated that the basement was 8 feet below this 00 level bench mark and because of the low lying plot, they had to put earth berming around the basement retaining wall leaving only RC No. 3(E)/2009/CBI/EOUVII/ND 38/69 CBI vs Virender Kumar Khosla etc. the ventilators of the basement; this berming was done so that in case the site becomes flooded with water, it does not damage the walls of the basement. Also DW1 deposed that as this is a low lying area, they constructed a ramp from the approach Dwarka Link Road to reach the ground level and this ramp can be considered like a fly over situation in which no area below this ramp is useable and it is also filled with earth.
49. Certificate of architect DW1, part of Ex DW1/A (colly) dated 22/07/2008, finds mention of its validity upto 31/12/2001 AD. Also is mentioned in Ex DW1/A (colly) that the construction is as per BBL. BBL 14.12.2 inter alia mentions of the requirement of basement to be having minimum height of the ceiling as 0.9 m and maximum height of ceiling as 1.2 m above the average surrounding ground level. As per BBL no. 2.11, if the building does not abut on a street, the height shall be measured above the average level of the ground around and contiguous to the building. BBL no. 2.8.4 defines, "to abut" as to be positioned juxtaposed to a road, lane open space, building etc. As per Oxford dictionary juxtaposed means, "put side by side". Building is defined in BBL no. 2.10, afore elicited. The plans, photographs Ex P1, P2, P3 as well as video cassette also Ex P1 on display clearly show that after the Dwarka road there is service lane which is on a lower level than the main Dwarka Road and thereafter the boundary wall with main gate of the property in question is situated. Also is depicted that the building has been constructed at a distance of more than 250 feet from RC No. 3(E)/2009/CBI/EOUVII/ND 39/69 CBI vs Virender Kumar Khosla etc. the said gate. It is proved on record that the building in question including the basement is accordingly not abutting the main Dwarka road, so its plinth level cannot be based upon the level of the center of main Dwarka road, as alleged by DW1 and/or argued by Ld. Defence Counsels for the accused. The plinth level is to be taken from the surrounding ground level adjoining the building in terms of BBL no. 2.11, elicited herein before. Plans Ex PW5/C (colly) depict height of basement of the building in question to be 9 feet 10 inches above the surrounding ground level whereas in terms of the sanction plans the height of the basement of the building should be 4 feet above the surrounding ground level.
50. As afore elicited DW1 stated that they had put earth berming around the basement retaining wall leaving only the ventilators of the basement to avoid damage to the walls of basement in the event of water flooding at site. This version of DW1 puts at rest the contention of the Ld. Counsel of A2 and A3 that the ventilators of the basement at the time of inspection of premises in question by A2 and A3 were just 6 inches above the ground level. It is proved on record that such earth berming around the basement was man made i.e., by A1 and DW1 through others and was not natural i.e. such earth berming around the basement retaining wall increased the level of ground from the average level of the ground around and contiguous to the building. It is also vivid and clear in the photographs Ex P13, P17 RC No. 3(E)/2009/CBI/EOUVII/ND 40/69 CBI vs Virender Kumar Khosla etc. and on display of the video cassette Ex P1. As per BBL no. 14.12.2(vi), the access to the basement is to be separate from the main and alternate staircase providing access and exit from higher floors and also that open ramps shall be permitted if they are constructed within the building line subject to the provision of (iv). Photograph Ex P12 depicts six stairs leading down to basement from the ground around and contiguous to the building. Such depiction is also vivid and clear in the display of the video cassette Ex P1. Accordingly, it is demonstrated and proved that in terms of plans Ex PW5/C (colly), the height of the basement below ground level was 4 feet while as per sanction plans, it should have been 7 feet. Photograph Ex P13 depicts 8 stairs outside the building line required to be climbed to reach at the platform having height equal to the lower level of the ventilator of the basement seen from outside the premises. One has to climb these stairs to reach on the raised platform and then has to go down stairs on left side to reach lower floor. Also from the aforesaid raised platform one has to climb 12 more stairs to reach at the upper floor level. Thus constructed upper floor of the building, perse cannot be of elevation of 4 feet above ground level, as it should have been in terms of the sanctioned plans. Elicited version of DW1 on this count is accordingly improbable, unbelievable so is discarded. Inability of examined prosecution witnesses to orally testify in vivid details the specific violations of building byelaws would in no manner make the eyes of the Court or Prosecutor shut from the documentary and other evidence on record. Even PW5 categorically RC No. 3(E)/2009/CBI/EOUVII/ND 41/69 CBI vs Virender Kumar Khosla etc. stated that the individual deviations were detailed in Annexure B i.e., Ex PW5/B2.
51. Ld. Counsels for accused had also assailed the extent of construction depicted in Ex PW5/B1 alleging measurements to have been taken incorrectly by PW7 and others, incompetent persons and in piece meal.
52. Contract Architectural Assistant PW7 Sher Singh Mittal with his team members had inspected the site as aforesaid, of the premises in question. Annexure A, Ex PW5/B1 and Annexure B, Ex PW5/B2 were prepared by PW7 after measuring the entire area. In terms thereof the permissible covered area of basement was 1742.89 sq. meters and sanctioned covered area as per the sanctioned building plan was 1712.51 sq. meters and existing covered area of the basement was 1745.39 sq. meters and covered area beyond sanctioned but within permissible limit was 30.38 square meters, excess area beyond permissible limit was 2.5 square meters; the existing covered area of the stilt was found 30.38 square meters; the permissible covered area of the ground floor was 1742.89 square meters and sanctioned covered area as per the sanctioned building plan was 1712.51 square meters and existing covered area of ground floor was 1791.44 square meters and covered area beyond sanctioned but within permissible limit was 30.38 square meters and excess area beyond permissible limit was 48.55 RC No. 3(E)/2009/CBI/EOUVII/ND 42/69 CBI vs Virender Kumar Khosla etc. square meters; the sanctioned covered area of the first floor was 50.40 square meters as per the sanctioned plan and existing covered area of the first floor was 14.73 square meters and covered area beyond sanctioned but within permissible limit was 50.40 square meters and excess area beyond permissible limit was 14.73 square meters; the total permissible covered area was 3485.78 square meters and sanctioned covered area as per sanctioned building plan was 3475.42 square meters and existing covered area was 3551.56 square meters except stilt and covered area beyond sanctioned but within permissible limit was 10.36 square meters and excess area beyond permissible limit was 65.78 square meters; only 13.5 square meters area was within compoundable limits. Architect Sher Singh (PW7) further deposed that the site plans (four in numbers), Ex PW5/C (colly), part of document D11 were prepared by him at the spot. PW7 elicited that the basement was measured from the outside as well as inside walls. Also PW7 had stated that the measurements were done taking the outside walls as well as the inner walls as the base; the measurements were done from the parapet walls. PW5 Jagdish Dayani was also member of the said inspection team and he also so testified. PW7 categorically denied of the suggestions that he did not conduct the measurements properly or measurements were done including the rain water pipes or the site plans prepared by him to be not correct or the support staff whose help he had taken were not properly trained. Per contra, PW7 testified in terms of his submitted documents Ex PW5/B1, Ex PW5/B2 and Ex PW5/C (colly), as elicited RC No. 3(E)/2009/CBI/EOUVII/ND 43/69 CBI vs Virender Kumar Khosla etc. herein above. There is no reason to disbelieve the sworn statement of PW7 which infact makes vivid the extent of excess coverage by A1 in the construction raised in the premises in question. Plans Ex PW5/C (colly) make vivid and clear not only dimensions of the existing structures at the site as well as the structures itself which are so detailed therein. DW1 in the course of his examination, infact had made earnest effort to come out with an explanation by saying that "when we draw the drawing on computer, we take only the outside brick walls and do not take the plaster line in consideration, so during plastering the building from outside, one inch thickness of the building increases which results in a minor increase in area; also when we stone clad the building like we have done on the ground floor, there is an increase of 2 inches in the thickness of the building, which factor results in minor increase in area." To ascertain the extent of construction, the measurement of the structures are to be taken from outerside of walls. No BBL to the contrary has been shown by the accused/Ld. Counsels. Every part of any structure is included in the definition of building, elicited herein before, in BBL no. 2.10. Accordingly, from the testimony of PW7 and PW5, it is proved on record that the construction at the premises in question by A1 had excess area of 65.78 square meters beyond permissible limits while the covered area beyond sanctioned but within permissible limits was 10.36 square meters. Contrary to the aforesaid actual construction at site, completion certificate Ex PW1/B and its copy Ex PW1/A were prepared by A2 and A3, initialed by A3, RC No. 3(E)/2009/CBI/EOUVII/ND 44/69 CBI vs Virender Kumar Khosla etc. signed by A2 on the premise of the NOC Report Form at pages 69/C to 72/C of completion file D2. Said NOC Report Form dated 01/09/2008 was prepared by A3 on the basis of his inspection dated 01/09/2008, which was recommended by A2 on 02/09/2008 and approved initially by Executive Engineer on 04/09/2008 and then by DC/NGZ on 04/09/2008 wherein 16.28 square meters excess covered area in basement within permissible limits; 29.94 square meters excess covered area at ground floor within the permissible limits and 5.54 square meters extra slab in Mumty were taken as compoundable deviations for which compounding fees @ Rs 100/ was charged to arrive at the figure of Rs 5177/ charged as compounding fees for such deviations. In terms of the recommendation in said NOC Report Form, A2 had inspected the site of premises in question.
53. 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 every one of the conspirators takes 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 RC No. 3(E)/2009/CBI/EOUVII/ND 45/69 CBI vs Virender Kumar Khosla etc. the accused involved in the conspiracy. 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 or partly implied. Even Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co conspirators.
54. In "Shivanarayan v. State of Maharashtra", AIR 1980 Supreme Court 439, it was held that "It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design."
55. While speaking for the Bench it is held by Hon'ble Mr. Justice P.Venkatarama Reddi in State (NCT of Delhi) vs. Navjot Sandhu, AIR 2005 SUPREME COURT 3820 as follows:
"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 RC No. 3(E)/2009/CBI/EOUVII/ND 46/69 CBI vs Virender Kumar Khosla etc. 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."
56. In the case of State of Maharashtra and Others vs Som Nath Thapa and Others, (1996) 4 SCC 659, it was held that "To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
57. In the course of final arguments, A2 and A3 through Counsel relied upon Circular no. D/167/EE(B)HQ/99 dated 22/03/99 of MCD. A3 and A2 were the concerned Junior Engineer and Assistant Engineer respectively to process issuance of the completion certificate. In terms of said circular and even otherwise, it was incumbent upon A2 and A3 to inspect/test check the premises, scrutinize the application RC No. 3(E)/2009/CBI/EOUVII/ND 47/69 CBI vs Virender Kumar Khosla etc. before grant of completion certificate before issuing the completion certificate. In terms of BBL no. 7.5.2, it was also incumbent upon A2 and A3 to inquire qua status of applicant/company namely M/s Instyle Motel Services Pvt Ltd as to whether it was the owner of premises in question, since only the owner is to submit such notice of completion of building to the authority. Alongwith Ex DW1/A (colly) no documents were annexed by the applicant / M/s Instyle Motel Services Pvt Ltd that the title of the said property had devolved upon the said company. Infact sanction plans were applied for and got sanctioned in joint names of A 1 and his son Yogesh Khosla. It was all the more necessary for A2 and A3 to dwell into said aspect, to have scrutinized it and put it in black and white in their notes and recommendation to their superior officers. Infact M/s Instyle Motel Services Pvt Ltd did not have any locus standii for getting issued the completion certificate in its own name, since the said company was not owner of premises in question nor of the land beneath it nor the plans were sanctioned in its favour. Also was incumbent upon A2 and A3 to test check, verify and ascertain the large scale deviations in actual construction from the sanction plans of the building raised in premises in question. Also was incumbent upon A2 and A3 to ascertain whether A1 or even applicant company had applied for any revised plans for internal alterations and external additions in construction of building from the sanction plans, in terms of BBL no. 7.4 or in furtherance thereto had followed procedure laid down for the original plans and/or having obtained amended plans. It was RC No. 3(E)/2009/CBI/EOUVII/ND 48/69 CBI vs Virender Kumar Khosla etc. required of A2 and A3 to bring this facet of the matter in black and white before their superiors. There are no notes on record, prepared by either A2 or A3 or by them jointly of any measurement at site of actual construction or actual construction to be as stated in completion plan Ex DW1/B. Significant construction of ramp in reverse U shape leading from main entrance and exit to main entrance of building, at height of more than 10 feet from the surrounding ground level was lost sight of by A2 and A3, though it found mentioned in completion plan Ex DW1/B but found no mention in the sanction plans. Even said aspect was not brought into the notice of their superiors by A2 and A3. The completion certificate should have been issued by Executive Engineer, but was given to A1 under signatures of A2, initialed by A3 without signatures of Executive Engineer concerned. The lower floor of construction raised was 4 feet below ground level. As per sanction plans, it should have been 7 feet below ground level. The lower floor of construction did not qualify as a basement as per B.B.L. No 14.12.2. Neither in the report of A3 nor in the recommendation of A2 such actual constructions of the lower floor of the premises in question were so mentioned nor brought in the knowledge of their superiors.
58. All afore elicited circumstances of the case, conduct of the accused involved lead to sole inference of existing of meeting of minds, conspiracy amongst accused persons for issuance of completion RC No. 3(E)/2009/CBI/EOUVII/ND 49/69 CBI vs Virender Kumar Khosla etc. certificate aforesaid for wrongful gain of A1 despite construction of premises in question contrary to sanction plans as well as BBL and levying of compounding fees on less construction than actual construction.
59. A3 being a Junior Engineer in MCD and A2 being Assistant Engineer in MCD were public servants. Pursuant to receipt of notice of completion of building in premises in question, A3 and A2 were incharge of preparation of records for processing issuance of completion certificate or rejection thereto. Aforesaid NOC Report Form at pages 69/C to 72/C in completion file D2 were so prepared by A3 pursuant to his inspection dated 01/09/2008 followed by recommendation of A2 dated 02/09/2008 containing fact of having inspected the site, forming basis of preparation and issuance of completion certificate Ex PW1/B and its carbon copy Ex PW1/A bearing initials of A3 and signatures of A2 at point A. Inspection of premises in question was done by A3 and A2 before issuance of completion certificate Ex PW1/B. Knowing fully well the extent of actual construction at the premises in question [as later on found by PW7 and PW5, detailed in Ex PW5/B1, Ex PW5/B2 and Ex PW5/C (colly)], therein being 65.78 square meters excess area beyond permissible limit, yet, incorrect record in the form of NOC Report Form aforesaid, completion certificate Ex PW1/B, its carbon copy Ex PW1/A were framed, compounding fees of Rs 5177/ in terms of the calculation in RC No. 3(E)/2009/CBI/EOUVII/ND 50/69 CBI vs Virender Kumar Khosla etc. NOC Report Form elicited above, were obtained from A1. By issuance of such incorrect records, A2 and A3, the public servants had the knowledge inter alia of the fact that they would be (1) saving the constructed property from the charges actually recoverable from owner of said property on account of the actual construction; (2) saving A1 and his coowner son from legal punishment for raising such unauthorized construction per contra to sanction plans and BBL; (3) causing the loss/injuries to the department of MCD and (4) facilitating issuance of completion certificate on the basis of such incorrect records.
60. Having raised afore elicited construction per contra to sanction plans, inter alia constructing lower floor contrary to building byelaws, terming it as basement despite the fact that it did not qualify to be called as basement, doing excess coverage than what was permitted vide sanction plans, depositing less compounding fees and obtaining completion certificate Ex PW1/B, copy Ex PW1/A from MCD on incorrect calculation of compounding fees for less coverage area than actual covered area, also misrepresenting of having completed construction as per sanctioned plans and BBL, A1 had put MCD to wrongful loss and inter alia himself to wrongful gain and thus committed the offence of cheating which is proved on record beyond reasonable doubt.
61. In Criminal Appeal Nos. 482/02, 509/02 & 536/02 titled RC No. 3(E)/2009/CBI/EOUVII/ND 51/69 CBI vs Virender Kumar Khosla etc. Runu Ghosh vs C.B.I.; P. Rama Rao vs C.B.I; Sukh Ram vs C.B.I, it was inter alia held by Hon'ble Mr. Justice S. Ravindra Bhat and Hon'ble Mr. Justice G.P. Mittal on 21/12/2011 that "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 else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advantage or a valuable thing - without public interest."
Also was held that "161. This Appeal was received upon a reference to the Division Bench, as regards the true interpretation of Section 13 (1) (d) (iii). We have indicated the test applicable, i.e. when the decision or an act of a public servant, (which results in another obtaining pecuniary advantage or valuable thing) be without public interest, namely, if that action of the public servant is the consequence of her or his 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."
The test applicable was indicated as "However, the test always in such cases is whether the decision was such as someone acting reasonably, on the basis of the materials available, would have taken. The test of public interest is paramount; if it appears that the decision is RC No. 3(E)/2009/CBI/EOUVII/ND 52/69 CBI vs Virender Kumar Khosla etc. taken without public interest in mind, and unreasonably or manifest disregard to the consequence that such act would be severe undermining of public interest, and that such decision would result in a third party obtaining pecuniary advantage, without public interest, the decision maker has to take responsibility for the consequences."
62. While holding office as Junior Engineer and Assistant Engineer respectively, A3 and A2 respectively, by preparation of NOC Report Form, afore elicited, A2 and A3 processed and issued the completion certificate Ex PW1/B, copy Ex PW1/A in favour of M/s Instyle Motel Services Pvt Ltd, whose copy was so delivered to A1, putting A1 to pecuniary advantage by so obtaining of completion certificate. Building byelaws were brought into existence with the basic purpose to check haphazard growth of buildings and to ensure public health and safety. In 1983, DDA notified unified building bye laws with a view to have uniform building code for all the local bodies. In furtherance of their conspiracy, ingenuity was expended by arraigned accused to avoid the implementation of the welfare legislation. Construction per contra to sanction plans was deliberately ignored but successful endeavor was made by A2 and A3 to depict it as legalized by issuing/getting issued completion certificate Ex PW1/B, copy Ex PW1/A. Such conduct of public servants A2 and A3 squarely comes within the ambit of criminal misconduct, as they had processed and issued the completion certificate, a valuable thing while holding their RC No. 3(E)/2009/CBI/EOUVII/ND 53/69 CBI vs Virender Kumar Khosla etc. such office as public servants, also even abusing their position as public servants, which completion certificate was obtained for A1 as pecuniary advantage of A1 himself and his other coowner, son Yogesh Khosla, without any public interest. Facts and circumstances embodied in the cases of (1) MW Mohiuddin (Supra), in a trap case; (2) Major SK Kale (Supra), in an urgent purchase matter are entirely different and distinguishable to the facts and circumstances of this case and are of no help to defence to secure acquittal of accused.
63. Sh K.S Mehra (PW3), Commissioner, MCD had accorded sanction under section 19 of The Prevention of Corruption Act 1988 vide orders Ex PW3/A and Ex PW3/B for taking cognizance of offences against A2 and A3 respectively after satisfying himself that there were grounds to allow their prosecution on the basis of documents provided to him by the CBI through Vigilance Department, while the said PW3 was the authority competent to remove both A2 and A3 from service.
64. In view of foregoing discussions, I am of the considered opinion that prosecution has been successful in proving its case beyond reasonable doubt against (1) all arraigned accused for offence under Section 120B IPC; (2) A1 Virender Kumar Khosla for offence under Section 420 IPC; (3) A2 Kailash Kumar Meena and A3 Kamal Singh for offences under Section 218 IPC read with Section 120B IPC and Section 13 (i)(d)(ii) and (iii) of The Prevention of Corruption Act 1988 RC No. 3(E)/2009/CBI/EOUVII/ND 54/69 CBI vs Virender Kumar Khosla etc. read with Section 13 (2) of The Prevention of Corruption Act 1988, for which offences, the said accused are held guilty and convicted accordingly. Let they be heard on sentence.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e.,18/10/2012. Patiala House Court, New Delhi.
Deepika RC No. 3(E)/2009/CBI/EOUVII/ND 55/69 CBI vs Virender Kumar Khosla etc. IN THE COURT OF SH. GURVINDER PAL SINGH, SPECIAL JUDGE (PC ACT) (CBI)6, PATIALA HOUSE COURT, NEW DELHI CC No. 10/12 (Old CC No. 03/11) RC No. 3(E)/2009/CBI/EOUVII/ND U/s 120B/218/420 IPC & Sec 13 (2) r/w 13(1)(d) of The PC Act,1988. Unique ID No. : 02403R0417572009 Central Bureau of Investigation vs. (1) Virender Kumar Khosla, S/o Late Sh. R.S. Khosla, R/o J7, South Extension PartI, New Delhi (2) Kailash Kumar Meena,S/o Sh. S.L Meena, R/oRZF513, Sadh Nagar, Palam Colony, New Delhi (3) Kamal Singh, S/o Sh. Badri Prasad, R/o Flat No.2, Pocket B, Sector 13, Dwarka, New Delhi ORDER ON SENTENCE:
Having convicted (1) all arraigned accused for offence under Section 120B IPC; (2) Virender Kumar Khosla (A1) for offence under Section 420 IPC; (3) Kailash Kumar Meena (A2) and Kamal Singh (A3) for offences under Section 218 IPC read with Section 120B IPC and Section 13 (i)(d)(ii) and (iii) of The Prevention of Corruption Act 1988 read with Section 13 (2) of The Prevention of Corruption Act 1988; I have heard the Ld. PP for CBI, the Ld. Defence Counsels and the RC No. 3(E)/2009/CBI/EOUVII/ND 56/69 CBI vs Virender Kumar Khosla etc. convicts and have perused the record.
2. Learned Public Prosecutor has prayed for stern prison term on the ground that corruption has reached phenomenal level and deterrent sentence would serve as eyeopener for convicts as well as for others.
3. Sh. Vinod Kumar, Ld. Counsel for convict Virender Kumar Khosla (A1) has prayed for showing compassion and leniency. He submitted that the convict is senior citizen of age 73 years, widower, having two unmarried sons of age 44 years and 42 years respectively, amongst whom the elder son is mentally upset while the younger son is living separately. Also, the convict submitted that he initially was a Sales Manager in Lufthansa; later made own company of Air Freight, which he sold to an American Company and had made a Motel, in the property in question, from where he is earning his livelihood. The convict also submitted that he has clean antecedents, had no other case criminal or civil against him. Ld. Counsel for convict prayed for enlarging of convict on probation.
4. Sh Atul Kumar Sharma, Ld. Counsel for convicts Kailash Kumar Meena (A2) and Kamal Singh (A3) also prayed for showing compassion and leniency. He submitted that these convicts are Government employees, had been of good conduct and regular in the RC No. 3(E)/2009/CBI/EOUVII/ND 57/69 CBI vs Virender Kumar Khosla etc. course of trial, the alleged unauthorized construction was not in their tenure; only completion certificate in question was issued in their tenure, which completion certificate, if they had not issued, then in terms of the applicable building byelaws after expiry of 60 days of the application for completion certificate, the completion certificate would have been deemed to be issued. Ld. Counsel for convicts also argued that these convicts were not having any great malafide intention and even it is not the case of prosecution that they had issued the completion certificate in question against any consideration, monetary or otherwise. Ld. Counsel for convicts prayed for enlarging of convicts on probation.
5. Convict Kailash Kumar Meena (A2) submitted that he was of age 46 years, a Bachelor of Technology, employed as Junior Engineer in MCD in 1997, promoted as Assistant Engineer in the year 2006 and presently is working in the Maintenance Division of Najafgarh Zone of MCD. Also, the convict submitted that he had family consisting of housewife, a daughter aged 21 years doing B.Tech, a son aged 16 years studying in class 12th in a Public School while he himself was studying in second year of LLB from Law Centre II at Dhaula Kuan. Also the convict submits that he had clean antecedents and was neither a previous convict nor had any case civil or criminal pending against him. The convict also submitted that his parents had expired earlier. The convict has prayed for lenient view.
RC No. 3(E)/2009/CBI/EOUVII/ND 58/69 CBI vs Virender Kumar Khosla etc.
6. Convict Kamal Singh (A3) submitted that he was of age 44 years, had done diploma in Civil Engineering, employed in MCD since year 2000 as Junior Engineer. Also convict submitted that his parents were in the village Rajasthan where his other three brothers with family resided. Convict also submitted that his family consisted of housewife, two minor sons of age 15 years and 13 years respectively, studying in class 9th and 8th respectively besides a daughter of age 18 years, a student of class 12th in a Public School. Also the convict submitted that he had clean antecedents, had no case, civil or criminal pending against him.
The convict has prayed for lenient view.
7. Having raised construction per contra to sanction plans in premises in question, inter alia constructing lower floor contrary to building byelaws, terming it as basement despite the fact that it did not qualify to be called as basement, doing excess coverage than what was permitted vide sanction plans, depositing less compounding fees and obtaining completion certificate from MCD on incorrect calculation of compounding fees for less coverage area than actual covered area, also misrepresenting of having completed construction as per sanctioned plans and BBL, convict Virender Kumar Khosla (A1), pursuant to conspiracy with other co accused, had put MCD to wrongful loss and inter alia himself to wrongful gain and committed the offence of cheating.
RC No. 3(E)/2009/CBI/EOUVII/ND 59/69 CBI vs Virender Kumar Khosla etc.
8. Convicts Kamal Singh (A3) and Kailash Kumar Meena (A
2) in connivance with convict Virender Kumar Khosla (A1) had abused their official position as public servants and prepared NOC report dated 02/09/2008 on the basis of which incorrect completion certificate was issued on 18/09/2008 dishonestly, for which the said convicts had the knowledge inter alia of the fact that they would be (1) saving the constructed property from the charges actually recoverable from owner of said property on account of the actual construction; (2) saving convict Virender Kumar Khosla (A1) and his coowner son from legal punishment for raising such unauthorized construction per contra to sanction plans and BBL; (3) causing the loss/injuries to the department of MCD and (4) facilitating issuance of completion certificate on the basis of such incorrect records. It was incumbent upon these convicts (A 2 and A3) (1) to inspect/test check the premises, scrutinize the application before grant of completion certificate before issuing the completion certificate; (2) to inquire qua status of applicant/company namely M/s Instyle Motel Services Pvt Ltd as to whether it was the owner of premises in question, since only the owner is to submit such notice of completion of building to the authority; (3) to consider the fact that sanction plans were applied for and got sanctioned in joint names of convict Virender Kumar Khosla (A1) and his son Yogesh Khosla and put it in black and white in their notes and recommendation to their superior officers; (4) that since M/s Instyle Motel Services Pvt Ltd did RC No. 3(E)/2009/CBI/EOUVII/ND 60/69 CBI vs Virender Kumar Khosla etc. not have any locus standii for getting issued the completion certificate in its own name, as the said company was not owner of premises in question nor of the land beneath it nor the plans were sanctioned in its favour so said aspect was to be brought to the notice of their superiors by these convicts (A2 and A3); (5) to test check, verify and ascertain the large scale deviations in actual construction from the sanction plans of the building raised in premises in question; (6) to ascertain whether convict Virender Kumar Khosla (A1) or even applicant company had applied for any revised plans for internal alterations and external additions in construction of building from the sanction plans, in terms of BBL no. 7.4 or in furtherance thereto had followed procedure laid down for the original plans and/or having obtained amended plans; (7) to bring this facet of the matter in black and white before their superiors. Significant construction of ramp in reverse U shape leading from main entrance and exit to main entrance of building, at height of more than 10 feet from the surrounding ground level was lost sight of by these convicts (A2 and A3), though it found no mention in the sanction plans. Even said aspect was not brought into the notice of their superiors by these convicts (A2 and A3). The completion certificate should have been issued by Executive Engineer, but was given to convict Virender Kumar Khosla (A1) under signatures of convict Kailash Kumar Meena (A2), initialed by convict Kamal Singh (A3) without signatures of Executive Engineer concerned. The lower floor of construction did not qualify as a basement but neither in the report of convict Kamal Singh RC No. 3(E)/2009/CBI/EOUVII/ND 61/69 CBI vs Virender Kumar Khosla etc. (A3) nor in the recommendation of convict Kailash Kumar Meena (A2) such actual constructions of the lower floor of the premises in question were so mentioned nor brought in the knowledge of their superiors. Not only these convicts (A2 and A3) abused their official position as public servants but they also deliberately failed to observe aforesaid reasonable safeguards for issuance of the completion certificate against detriment to the public interest, which having regard to all circumstances, it was their bare duty to have adopted. In issuing such completion certificate, these convicts (A2 and A3) had put all canons of building byelaws at bay, thus defeating the basic purpose of building byelaws to check haphazard growth of buildings and to ensure public health and safety. In furtherance of their conspiracy, ingenuity was expended by arraigned accused to avoid implementation of the welfare legislation. Construction per contra to sanction plans was deliberately ignored but successful endeavor was made by these convicts (A2 and A3) to depict it as legalized by issuing/getting issued completion certificate. It resulted in undue pecuniary advantage to convict Virender Kumar Khosla (A1) against public interest. Such conduct of these convicts (A2 and A3) was gross criminal misconduct, also against public interest.
9. In State of U. P. v. Kishan, AIR 2005 Supreme Court 1250, wherein Criminal Appeal was disposed of by Allahabad High RC No. 3(E)/2009/CBI/EOUVII/ND 62/69 CBI vs Virender Kumar Khosla etc. Court, Lucknow Bench by reducing the respondent's sentence of 7 years' RI imposed to the period already undergone with a direction to pay fine of Rs. 15,000/ with default stipulation of one year RI, it was held that "The logic behind the sentence in a criminal trial has been highlighted by this Court in State of M.P. v. Ghanashyam Singh (2003 (8) SCC 13).
Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu (AIR 1991 SC 1463).
After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG Dautha v. State of California, 402 US 183 : 28 LD 2d 711, that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime,the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing RC No. 3(E)/2009/CBI/EOUVII/ND 63/69 CBI vs Virender Kumar Khosla etc. appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal."
10. Today India is faced with a different kind of challenge. It is not 'petty Bakshish' anymore but scams to the tune of thousands of crores that highlight a political, bureaucratic, industry nexus which if not checked could have a far reaching impact. Corruption is considered to be one of the major roadblocks in India's journey from a developing to a developed economy. There is an urgent need to have a comprehensive framework that would help curtail corruption. Rigid bureaucracy, complex laws and long drawn processes of the legal system deters people from taking legal recourse against corrupt public servants.
11. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. In the fact of the matter the economic offences were committed RC No. 3(E)/2009/CBI/EOUVII/ND 64/69 CBI vs Virender Kumar Khosla etc. with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. Also, disregard for the interests of the Community was manifest in the acts of convicts, who were also unmindful of the damage done to the society and nation.
12. Corruption needs to be eradicated from the nation. Task is arduous,mammoth and gigantic but not unachievable. To achieve that, one has to rise above his vainglorious and gluttonous interest and to raise his moral standards. Public persons need to resist to such illegitimate insistence and rather should act as whistleblowers. Need of the hour is to sacrifice selfish approach for the sake of the society and nation. Only with collective efforts, corruption can be eradicated. It needs more than one to make a row and similarly for any act of corruption to take place, on most of the occasions, there are two or more parties. One is the bribe giver and other is bribeaccepter. If bribeaccepter does not find any bribe giver or bribegiver withdraws himself completely and shuns the bribeaccepter, then dream of living in a corruptionfree nation can be a reality at earliest.
13. Keeping in mind the gamut of facts and circumstances, I do not find any reason to grant benefit of probation to any of the convicts. Granting of probation to convicts would be like granting licence to such offenders for raising constructions contrary to law and rules and for concerned officials to conveniently ignore them for own personal RC No. 3(E)/2009/CBI/EOUVII/ND 65/69 CBI vs Virender Kumar Khosla etc. benefits in detriment to public interest and implementation of welfare legislation for public health and safety. Cry of society is that such convicts are to be suitably sentenced.
14. Be that as it may, I cannot be oblivious of the fact that the convicts have no bad antecedents and have already undergone agony of trial for about 34 months as well. Keeping in mind overall facts and circumstances of the case, the convicts are sentenced as under:
Virender Kumar Khosla (A1) is sentenced to:
(i) Rigorous Imprisonment for one year for offence under Section 120B IPC and fine of Rs.5,000/ in default thereof he would undergo Simple Imprisonment for a further period of three months;
(ii) Rigorous Imprisonment for four years for offence under Section 420 IPC and fine of Rs.10,000/ in default thereof he would undergo Simple Imprisonment for a further period of six months.
The sentences of Rigorous Imprisonment shall run concurrently. The sentences of Simple Imprisonment in default of payment of fine shall run consecutively.
RC No. 3(E)/2009/CBI/EOUVII/ND 66/69 CBI vs Virender Kumar Khosla etc. Kailash Kumar Meena (A2) is sentenced to:
(i) Rigorous Imprisonment for one year for offence under Section 120B IPC and fine of Rs.5,000/ in default thereof he would undergo Simple Imprisonment for a further period of three months;
(ii) Rigorous Imprisonment for two years for offence under Section 218 IPC read with Section 120B IPC and fine of Rs.5,000/ in default thereof he would undergo Simple Imprisonment for a further period of three months;
(iii) Rigorous Imprisonment for four years for offence under Section 13 (i)(d)(ii) and (iii) of The Prevention of Corruption Act 1988 read with Section 13 (2) of The Prevention of Corruption Act 1988 and fine of Rs.5,000/in default thereof he would undergo Simple Imprisonment for a further period of three months.
All the sentences of Rigorous Imprisonment shall run concurrently. The sentences of Simple Imprisonment in default of payment of fine shall run consecutively.
Kamal Singh (A3) is sentenced to:
(i) Rigorous Imprisonment for one year for offence under Section 120B IPC and fine of Rs.5,000/ in default thereof he would undergo Simple Imprisonment for a further period of three months;
(ii) Rigorous Imprisonment for two years for offence under Section 218 IPC read with Section 120B IPC and fine of Rs.5,000/ in default thereof he would undergo Simple Imprisonment for a further RC No. 3(E)/2009/CBI/EOUVII/ND 67/69 CBI vs Virender Kumar Khosla etc. period of three months;
(iii) Rigorous Imprisonment for four years for offence under Section 13 (i)(d)(ii) and (iii) of The Prevention of Corruption Act 1988 read with Section 13 (2) of The Prevention of Corruption Act 1988 and fine of Rs.5,000/in default thereof he would undergo Simple Imprisonment for a further period of three months.
All the sentences of Rigorous Imprisonment shall run concurrently. The sentences of Simple Imprisonment in default of payment of fine shall run consecutively.
15. The convicts were on bail since filing of the case and during trial. The convicts have been sent to jail on 18/10/2012 after the judgment of conviction in this case. Needless to say, all the convicts would be entitled to benefit of Section 428 Cr.P.C.
16. A copy of judgment and order on sentence be given to all the convicts free of cost.
17. Let the convicts be sent to jail under appropriate warrants for which the Reader is directed to do needful.
18. All the convicts have also been made aware about the fact that they have right to file appeal.
RC No. 3(E)/2009/CBI/EOUVII/ND 68/69 CBI vs Virender Kumar Khosla etc.
19. Ahlmad is directed to page and bookmark the file as per the latest circular so as to enable digitization of the entire record.
File be consigned to record Room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 20/10/2012. Patiala House Court, New Delhi.
Deepika RC No. 3(E)/2009/CBI/EOUVII/ND 69/69