# RAJIV KUMAR v. STATE OF U.P. AND ANR

- **Citation:** [2017] 9 S.C.R. 594
- **Court:** Supreme Court of India
- **Decided:** 2017-08-02
- **Case number:** Criminal Appeal No. 251 of 2017
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajiv-kumar-v-state-of-u-p-and-anr-32502
- **Pages:** 31

## Headnote

A
B
[2017] 9 S.C.R. 594
RAJIV KUMAR
v.
STATE OF U.P. AND ANR.
(Criminal Appeal No. 251 of 2017)
AUGUST 02, 2017
[KURIAN JOSEPH AND R. BANUMATHI, JJ.f
Prevention of Corruption Act, 1988 - s.13(2) rlw. s.13(l)(d)
- Criminal misconduct by public servants - Prosecution case that
C appellants (the then Depu~y Chief Executive Officer, NOJDA and
the then Chairperson and Chief Executive Officer (CCEO) of NOJDA
respectively) entered into a criminal conspiracy, abusing their
position as public servants, with an object of procuring pecuniary
advantage to appellant-the then Deputy CEO by allotting him a
plot reserved/or Government Guest House after conversion contrarr
D
to the rules - Held: The evidence and materials on record amp(v
show that there:~Nas a prior concert of mind1· of the appellants in
conversion of the "guest house" into "residential" and allotting.
the same to appellant by.flouting the rules and the circular - Jn the
entire sequence of events, starting from applying for allotment of a
E
residential plot under the scheme and securing an allotment in a
developed sector by undergoing two conversions, undue haste was
shown in conversions which is quite evident/ram materials on record
- Undue haste only leads to an adverse inference - The act of the
appellants: (i) double conversion of the plot in violation of the rules
and circular; (ii) conversion of "guest house" to "residential" and
F
allotting the same to appellant-the then Deputy CEO; (iii) conversion
of an allotted plot to the developed sector at a lower rate; and (iv)
after getting the allotment of a smaller plot, getting allotment of
additional area, frequent alteration of the plots with the dishonest
intention of the appell~_nts gaining pecuniary advantage to
G themselves in altering the plots to their own advantage establishes
prior concert of the appellants in manipulating the maps/record~ to
suit their convenience - These facts man(fest abuse o.lposition by
·~ appellant-the then Deputy CEO in obtaining valuable thing and
pecuniary advantage for himself - Co-accused appe!lant-CCEO is
associated in each and every aspect of these events which clearly
H bring home the charge o.f conspiracy o.f both the accused.
594
RAJIV KUMAR v. STATE OF U.P. AND ANR.
595
Sentence/Sentencing - Prosecution case that appellants (the
A
then Deputy Chief Executive Officer, NO/DA and the then
Chairperson and Chief" Executive, ()[ficer (CCEO) of NO/DA
respectively) entered into a criminal conspiracy, abusing their
position as public servants, with the object ofprocuring pecuniary
advantage to appellant-the then Deputy CEO by allotting him a B
plot reserved for Government Guest House afier conversion contrary
to the rules - High Court upheld conviction of appellants u/s.120B /PC and s.13(2) rlw. s.13(J)(d) of P. C. Act, 1988 alongwith
sentence of imprisonment for 3 years - High' Court confirmed the
conviction and sentence - Held: Wife of the appellant-then Deputy
CEO filed an affidavit stating that the allotment was cancelled ·by C • . ,
NO/DA and that the amount deposited against the allotment of the
plot has not been refunded so far - She further averred that the
appellant-then Deputy CEO and his family are not interested in
getting the aforesaid plot and have unconditionally surrendered
the said plot_ - In the facts and circumstances of the present case D
and considering that the occurrence was of the year 1994 about 23
years ago and that the appellant-then Deputy CEO had ofjered to
surrender the plot and forgo refund and the fact that on account of
conviction, his service and retiral benefits are in jeopardy, sentence
o.l imprisonment imposed on him is reduced to 2 years' and that o.l
appellant-the then CCEO of NO/DA is also to be reduced -
E
Prevention of Corruption Act, 1988- s.13(2) rlw. s.13(1)(d) - Penal
Code, 1860 - s.120B.
Partly allowing the appeals, the Court
HELD: 1.1 For convicting the appellants under Section
120-B IPC and under Section 13(l)(d)(ii), there must be evidence
F

## Text

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A
B
[2017] 9 S.C.R. 594
RAJIV KUMAR
v.
STATE OF U.P. AND ANR.
(Criminal Appeal No. 251 of 2017)
AUGUST 02, 2017
[KURIAN JOSEPH AND R. BANUMATHI, JJ.f
Prevention of Corruption Act, 1988 - s.13(2) rlw. s.13(l)(d)
- Criminal misconduct by public servants - Prosecution case that
C appellants (the then Depu~y Chief Executive Officer, NOJDA and
the then Chairperson and Chief Executive Officer (CCEO) of NOJDA
respectively) entered into a criminal conspiracy, abusing their
position as public servants, with an object of procuring pecuniary
advantage to appellant-the then Deputy CEO by allotting him a
plot reserved/or Government Guest House after conversion contrarr
D
to the rules - Held: The evidence and materials on record amp(v
show that there:~Nas a prior concert of mind1· of the appellants in
conversion of the "guest house" into "residential" and allotting.
the same to appellant by.flouting the rules and the circular - Jn the
entire sequence of events, starting from applying for allotment of a
E
residential plot under the scheme and securing an allotment in a
developed sector by undergoing two conversions, undue haste was
shown in conversions which is quite evident/ram materials on record
- Undue haste only leads to an adverse inference - The act of the
appellants: (i) double conversion of the plot in violation of the rules
and circular; (ii) conversion of "guest house" to "residential" and
F
allotting the same to appellant-the then Deputy CEO; (iii) conversion
of an allotted plot to the developed sector at a lower rate; and (iv)
after getting the allotment of a smaller plot, getting allotment of
additional area, frequent alteration of the plots with the dishonest
intention of the appell~_nts gaining pecuniary advantage to
G themselves in altering the plots to their own advantage establishes
prior concert of the appellants in manipulating the maps/record~ to
suit their convenience - These facts man(fest abuse o.lposition by
·~ appellant-the then Deputy CEO in obtaining valuable thing and
pecuniary advantage for himself - Co-accused appe!lant-CCEO is
associated in each and every aspect of these events which clearly
H bring home the charge o.f conspiracy o.f both the accused.
594
RAJIV KUMAR v. STATE OF U.P. AND ANR.
595
Sentence/Sentencing - Prosecution case that appellants (the
A
then Deputy Chief Executive Officer, NO/DA and the then
Chairperson and Chief" Executive, ()[ficer (CCEO) of NO/DA
respectively) entered into a criminal conspiracy, abusing their
position as public servants, with the object ofprocuring pecuniary
advantage to appellant-the then Deputy CEO by allotting him a B
plot reserved for Government Guest House afier conversion contrary
to the rules - High Court upheld conviction of appellants u/s.120B /PC and s.13(2) rlw. s.13(J)(d) of P. C. Act, 1988 alongwith
sentence of imprisonment for 3 years - High' Court confirmed the
conviction and sentence - Held: Wife of the appellant-then Deputy
CEO filed an affidavit stating that the allotment was cancelled ·by C • . ,
NO/DA and that the amount deposited against the allotment of the
plot has not been refunded so far - She further averred that the
appellant-then Deputy CEO and his family are not interested in
getting the aforesaid plot and have unconditionally surrendered
the said plot_ - In the facts and circumstances of the present case D
and considering that the occurrence was of the year 1994 about 23
years ago and that the appellant-then Deputy CEO had ofjered to
surrender the plot and forgo refund and the fact that on account of
conviction, his service and retiral benefits are in jeopardy, sentence
o.l imprisonment imposed on him is reduced to 2 years' and that o.l
appellant-the then CCEO of NO/DA is also to be reduced -
E
Prevention of Corruption Act, 1988- s.13(2) rlw. s.13(1)(d) - Penal
Code, 1860 - s.120B.
Partly allowing the appeals, the Court
HELD: 1.1 For convicting the appellants under Section
120-B IPC and under Section 13(l)(d)(ii), there must be evidence
F
on record that the accused obtained for himself or any other .
person any valuable thing or pecuniary advantage. The act of the
appellants: (i) double conversion of the plot ih violation of the
rules and circular; (ii) conversion of "guest house" to
"residential" and allotting the same to appellant-the then Deputy . G
Chief Executive Officer; (iii) conversion of plot No.B-86 in Sector51 to the developed Sector-14A at a lower rate of Rs.1200/- plus
Rs.400/- per sq.m. as against the huge premium of Rs.4500/- per
sq.m. in Sector-14A; and (iv) after getting·the allotment of a
smaller plot, getting allotment of additional area, frequent
H
596
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B
SUPREME COURT REPORTS
'[2017] 9 S.C.R.
alteration of the plots with the dishonest intention of the appellants
gaining pecuniary advantage to themselves in altering the plots
to their own advantage establishes prior concert of the appellants
in manipulating the maps/records to suit their convenience. These
facts manifest abuse of appellant's position as public servant
obtaining valuable thing and pecuniary advantage for himself. Coaccused appellant-the then Chairperson and Chief Executive
Officer is associated in each and every aspect of these events
which clearly bring home the charge of conspiracy of both the
accused. (Para 46] [622-D-F]
1.2 So far as the role of co-accused appellant-the then
C
Chairperson & Chief Executive Officer is concerned, at the
relevant time both the appellants were public servants. Coaccused appellant played a specific role facilitating the appellantthe then Deputy Chief Executive Officer to obtain plot in a
developed sector, No.27 in Sector-14A at less premium.
D
Appellant-CCEO signed various notes put up before her like
conversion of "guest house" to "residential" and allotment of
plot No.27 in a developed Sector-14A. On perusal of the exhibits,
it is clear that appellant-CCEO was involved in all the stages of
conversion of the· '"guest house" to "residential", in violation of
E
F
rules allotment of plot No.27 to appellant-Deputy CEO and also
allotment of additional area to him. Often conspiracy is hatched
in secrecy and for proving this offence substantial direct evidence
may not be possible to be obtained. The evidence and materials
on record amply show that there was a prior concert of minds of
the appellants in conversion of the "guest house" into
"residential" and allotting the same to appellant-Deputy CEO by
flouting the rules and the circular. (Para 47] (622-G-H; 623-A-B]
2. On appreciation of evidence and materials on record,
both the trial court and the High Court recorded concurrent
findings that the appellants acted in clear abuse of position, plot
G No.27 in the developed Sector-14A was converted from guest
house to 'residential' and in violation of the norms and circulars,
the same was allotted to the appellant-Deputy CEO to gain
pecuniary advantage to him. The concurrent findings recorded
by the courts below are well balanced and there are no reasons
warranting interference. [Para 48] [623-C]
H
RAJIV KUMAR v. STATE OF U.P. AND ANR.
597
3.1 So far as the sentence is concerned for conviction under A
Section 120•B IPC, the appellants were sen!enced to undergo .
sentence of imprisonment for three years and a fine of Rs.50,000/-.
Likewise, for conviction under Section 13(2) read with Section
13(l)(d) of P.C. Act, the appellants were sentenced t<i undergo
imprisonment for three years and a fine of Rs.50,000/-. on each of B
the appellants. [Para 501 [623-GI
3.2 Occurrence was of the year 1994,_ the appeilants (the
then Chairperson and Chief Executive Officer (CCEO) i)f NO IDA
and the then Deputy Chief Executive Officer, NOIDA) are
undergoing . sentence from 18.04.2016 and 14.03.2016
respectively. With the conviction of the appellants, their job and
C
getting retiral benefits is also in jeopardy. Further, wife of the
appellant-Deputy Chief Executive Officer has filed an affidavit
stating that on 06.09.1999, the allotment was cancelled by NOlDA
and that the amount deposited against the allotment of the plot
has not been refunded so far. It is further averred that the D
appellant and his family are not interested in getting the aforesaid
plot. In the affidavit, it is further averred that the appellant-Deputy
Chief Executive Officer has unconditionally surrendered the said
plot. In the facts and circumsta11ces of the present case and
considering that the occurrence was of the year 1994 about twenty
three years ago and that the appellant Deputy Chief Executive
E
Officer had offered to surrender. the plot and forgo refund and
the fact that on account of conviction, his service and retiral
benefits are in jeopardy, sentence of imprisonment imposed on
the appellant Deputy Chief Executive Officer is reduced to two
years and necessarily that of the then Chairperson and Chief F
Executive Officer (CCEO) of NOIDA is also to be reduced. [Para
521 1624-C-El
.
.
.
Naida Entrepreneurs Association v. NOJDA and Ors.
(2011) 6 SCC 508 : [2011] 8 SCR 25 ; Yash Pal Mittal
v. State of Punjab (1977) 4 SCC 540 : [19781 1 SCR.
781 ; Ajay Aggarwal v. Union of Jndia_ and Others
(1993) 3 SCC 609 : [1993) 3 SCR 543 ; State of
Maharashtra and Others v. Som Nath Thapa and Others·
(1996) 4 SCC 659 : [199611 Suppl. SCR 189 ; Ram
Narai1i Popli v. Central Bureau of Investigation (2003)
3 SCC 641 : [20031 1 SCR 119- referred to.
G
H
598
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A
Case Law Reference
[20111 8 SCR 25
referred to
Para 32
[19781 1 SCR 781
referred to
Para 45
119931 3 SCR 543
refcned to
Para 45
B
[1996] 1 Suppl. SCR 189
referred to
Para 45
[2003] 1 SCR 119
referred to
Para 45
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
C No.25lof2017.
From the Judgment and Order dated 24.02.2016 of the High Court
of Judicature at Allahabad in Criminal Appeal No. 4717 of2012
WITH
D
CRL.A.No.252of2017.
K. V. Vishwanathan, Sr. Adv., P. V. Dinesh, Sindhu T.P., Ms. Arns hi
Singh, Ravi Raghunath, Bineesh K., Rajendra Beniwal, AbhishekAtrey.
Advs. for the Appellant.
Ranjit Kumar, SG, Ms. Binu Tamta, Rajesh Ranjan. Ms. Kiran
E Bhardwaj, Sarthak S., Shouryendu Ray, Mukesh Kumar Maroria, Abhisth
Kumar, Advs. for the Respondents.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. These appeals impugn the common
F judgment dated 24.02.2016 passed by the High Court of Judicature at
Allahabad in Criminal Appeal Nos.4717 of 2012 and 4888 of 2012
upholding the conviction of the appellants under Section 120-8 !PC and
Section 13(2) read with Section 13(l)(d) of Prevention of Corruption
Act, 1988 (for short 'the P.C. Act') and also the sentence ofimprisonment
for three years and a fine ofRs.50,000/- imposed on each of the appellants
G for conviction under Section 120-8 !PC. The High Court also confirmed
the sentence of imprisonment for three years and fine of Rs.50,000/-
imposed on appellant Raj iv Kumar for conviction under Section 13(2)
read with Section l3(l)(d) of P.C. Act with default clause.
2. lt is a well known fact that New Okhla Industrial Development
H Authority U.P. (hereinafter referred to as "NOIDA") was established
-
RAJIV KUMAR v. STATE OF U.P. AND ANR.
[R. BANUMATHI, J.]
599
in the year 197 6 with the responsibility of developing and managing Asia's
A
largest Integrated Industrial Township for the industrial growth of the
area, under the U ttar Pradesh Industrial Area Development Act, 1976 in
the National Capital Region. Administration of NO IDA was entrusted
to high level publi1.: officials so ~s to develop a planned, integrated, modern
Industrial City, well connected to Delhi through a network of roads, national
B
highways and the ultra-modern DND flyover, offering inter-road linkages
to all parts of the country. Spread over 20,316 hectares, with many
sectors fully developed, NOIDA was to offer a pollution free high
standard of living and highly supportive industrial environment with its
unique infrastructure providing numerous, matchless facilities. However,
the project got maffed by land allotment scams worth crores of rupees,
C
owing to abuse of position and power by the officials entrusted with the
management and control of NOIDA itself. In this connection, several
complaints surfaced alleging irregularities in allotments and conversions
of land in 'NOIDA'. Explanation was sought in this regard by the then
Principal Secretary (Heavy Industries) of the Government of U.P. from
D
appellant Neera Yadav. But, final decision was taken not to initiate any
departmental inquiry in the matter against the officials concerned.
3. One 'NOIDA Entrepreneurs Association' sought.inquiry by
the Central Bureau of Investigation (in short the. 'CBI') in the matter
and this Court vide order dated 20.01.1998 directed that the matter be
investigated by the CBI. Consequently, the CBl registered an F.l.R.
being Crime No.RC/3(A)/98-ACU-VII dated 26.02.1998 against
Ms. Neera Yadav who was serving as Chairperson and Chief Executive
Officer (CCEO) of NOIDA, during the relevant period viz. from
10.01.1994 to 08.11.1995, and some other high officials of NOIDA. The
FIR contained allegations to the effect that Ms. Neera Yadav in conspiracy
with other officials abused her position while committing grave
irregularities in the matters of allotments and conversions of land in
NOIDA. It is available on record that appellant Neera Yadav held the
post of CCEO ofNOIDA for the period 10.01.1994 to 08.11.1995.
E
F
4. Adverting to appellant Raj iv Kumar in Criminal Appeal
G ·
No.251/2017, it turns out that he served as Deputy Chief Executive
Officer, NO!DA for the period 14.06.1994 to 29:12.1995. Plot no.27 in
Sector 14-A, which was reserved for Government Guest House was
allotted after conversion to appellant Raj iv Kumar contrary to the mies.
Case of the prosecution is that on the application of appellant Raj iv Kumar,
H
600
A
B
SUPREME COURT REPORTS
(2017] 9 S.C.R.
Plot No. B-86 of 450 sq.ms. in Sector-51 was allotted to him. Appellant
Raj iv Kumar requested for conversion of his plot, even by smaller size in
Sector-l 4A. Accordingly, his allotment was converted to plot No.A-36
in Sector-44. Notably, contrary to the rules, he again got his allotment
converted to plot No.27 of 300 sq.ms. in the most prestigious
Sector-l 4A on Delhi border with approval of appellant Neera Yadav on
1S.I0.1994. Before so getting plot No.27 allotted in his favour, appellant
Rajiv Kumar in conspiracy with Neera Yadav converted plot No.27 which
was reserved for Government Guest House as residential to obtain
pecuniary advantage for Rajiv Kumar. Lease deed in his favour and in
favour of his wife was executed on 27.07.1995. After execution of
C lease deed, on application of wife ofappellant Raj iv Kumar on 26.10.1995
for extension of width by 3.5 mts" which was reported to have been
found in excess from plot No.28 on 28. l 0.1995, the proposal for its
allotment to appellant Raj iv Kumar by way of enhancement was approwd
by appellant Smt. Neera Yadav on 05.11.1995 and the same was allotted
D to Raj iv Kumar and thus the. area of plot No.27 allotted to him was
enhanced by 105 sq.ms., totalling to 405.00 sq.ms, by getting the note
presented through PW-17 Smt. Rekha Devyani, the then Town Planer
and PW-16 Sri Tribhuwan Singh, the then Chief Architect Planner.
Sanction was obtained under Section 19( l) of P.C. Act and after
completion of investigation into the allegations levelled against the
E appellants, charge sheet was filed against the appellants stating that the
appellants entered into_ a criminal conspiracy, abusing their position as
public servants, with an object of procuring pecuniary advantage to
appellant Raj iv Kumar.
5. Trial was conducted by the Special Judge, CBI, whereby
F charges were framed against the appellants. To substantiate the charges,
as many as twenty three witnesses were examined by CBI apart from
documentary evidence. The statements of appellants under Section 313
Cr.P.C. were recorded and opportunity to adduce evidence in their
defence was also given. Upon consideration of evidence, the Special
Judge CBI, Ghaziabad, vide judgment dated20.l l.2012 in Special Trial
G No. I 9 of2002, convicted the appellants under Section 120-B IPC read
with Section 13(2) read with Section 13(I)(d) of P.C. Act and under
Section 13(2) read with Section 13(1 )( d). For conviction under Section
13(2) read with Section 13(l)(d) of P.C. Act, appellant Raj iv Kumar
was sentenced to undergo rigorous imprisonment for a period of three
H years and fine of Rs.50,000/- with default clause. fur conviction tinder
RAJIV KUMAR v. STATE OF U.P. ANO ANR ..
[R. BANUMATHI, J.]
601
Section 120-B IPC, the trial court sentenced each of the appellants to . A
undergo rigorous imprisonment for a period of three years andfine of
Rs.50,000/- was imposed on each of the appellants. As noted earlier, on
appeal, the conviction and sentence of imprisonment and fine imposed
on each of the accused were affim1ed by the High Court.
6. Learned counsel for the appellant Rajiv Kumar, inter alia,
B
raised the following submissions:-
The present case involves merely one conversion viz. conversion
of plot No.B-86 in Sector-51 to plot No.27 in Sector-14A, which
is permissible under the rnles, as the conversion to plot No.A-36
in Sector-44 was never requested by the appeliant. The c;
allegations of the appellant being involved iri the illegal conversion
of plot contrary to the rules; without following due procedure, are
misconceived.
There.is no evidence to show that the appellant directed PW-17
Rekha Devyani to put up note for converting plot No.27-Guest D
House as a residential plot. In any case, conversion of a plot
reserved for Guest House to a residential plot, ·does not amotint to
· change in the nature of use of plot as both fall under th.e same
category of 'residential'. Plot No.27 in Sector-i4A, which was
allotted to him, was never a guest house rather plot No.28 was
the guest house and, hence, the allegation of illegal conversiori of E
the guest house to residential plot is baseless.
·
By conversion of plot to Sector-14A, the appellant has actually
compromised with the area ofthe plot and has also paid additional
conversion charges and thus, it would be inappropriate to suggest
that the appellant caused any loss to NOIDA nor was there arty
F ·
pecuniary advantage to the appellant.
.
With regard to allotment of additio.nal area of 105 sq.ms., the
appellant paid extra charges for the said land and the High Comi
· erre~ in holding that there was mis-utilisation of the said area of
105 sq.ms. By getting the said additional Ia:nd, the appellant had
G
actually benefitted NO IDA, as the concerned .piece of land was
found in excess of adjoining plot No.28 and it would have been o.f
no use had it not been allotted to the appellant.
There was no prior meeting of minds nor did exist there any
conspiracy between the appellant-Rajiv Kumar and the appellantH
602
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B
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SUPREME COURT REPORTS
[2017) 9 S.C.R.
Neera Yadav and that the contradictory versions of prosecution
witnesses have failed to bring home the charge of conspiracy.
7. The learned counsel for the appellant Neera Yadav also
contended that the courts below have wrongly arrived at the conclusion
that the appellants with dishonest intention entered into criminal
conspiracy with each other and conunitted illegal acts as well as acts by
illegal means in conversion of plot No.27 from guest house to residential
· and allotting the same to the appellant Raj iv Kumar in most developed
area. It was further contended that the appellant Ncera Yadav, being
the CCEO ofNOlDA was duty bound to approve the genuine proposals
or resolutions brought before her in discharge of ordinary course of her
official work and the orders of conversion and allotment of additional
plot of 105 sq.ms. were passed in disclurge of regular official work and
for doing so she may not be held guilty for committing any criminal
conspiracy under Section 120-B .!PC or for committing any offence of
cri1ninal misconduct under Section 13(2) read with Section 13( 1 )( d) of
D PC. Act.
E
F
8. Per contra, learned Solicitor General Mr. ·Ranjit Kumar
contended that the courts below have rightly convicted the appellants on
the charge of committing conspiracy in the matter of illegal and arbitrary
allotment of plots in their favour, in favour of their kith and kin as well as
in favour of different persons mentioned in F.l.R. by abusing their
position as public servants.
_ 9. We have carefully considered the rival submissions advanced
on behalf of the-parties and have also perused the evidence and documents
available on record and the impugned judgment.
r'
I 0. Section 13 of the P.C. Act in general lays down that if a public
servant, by corrupt or illegal means or otherwise abusing his position a~
a public servant obtains for himself or for any other person any valuable
thing or pecuniary advantage, he would be guilty of' criminal misconduct'.
Sub-section (2) of Section 13 speaks of the punishment for such
misconduct. Section 13( I)( d) read with Section 13(2) of P.C. Act lays
G down the essentials and punishment respectively for the offence of
'criminal misconduct' by a public servant. Section 13(1 )( d) reads as
under:
· "13. Criminal misconduct by a public servant.-
(!) A public servant is said to commit 'the offence of criminal
H
misconduct,
RAJIV KUMAR v.
STATE OF U.P. AND ANR.
603
[R. BANUMATHI, J.]
(d)ifhe,-
A
(i) by corrnpt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself
or for any other person any valuable thing or pecuniary advantage;
or
(iii) while holding office as a public servant, obtains for any person
any valuable thing or pecuniru.y advantage without any public
interest; or"
B
A pernsal of the above provision makes it clear that if the elements
C
of any of the three sub-clauses are met, the same would be sufficientto
constitute an offence of' criminal misconduct' under Section 13( 1 )( d).
Undoubtedly, all the three wings of clause (d) of Section 13(1) are
independent, alternative and disjunctive. Thus, under Section 13( 1 )( d){i)
of P.C. Act obtaining any valuable thing or pecuniary advantage
by corrupt or illegal means by a public servant in itself would amount D
to criminal misconduct. On the same reasoning under Section 13(1 )( d)(ii)
of P.C. Act "obtaining a valuable thing or pecunimy advantage" by
abusing his official position as a public servant, either for himself or for
any other person would amount to criminal misconduct.
11. Allotment of Plot contrary to the Scheme and Dishonest
E
Intention of the Appellants: Appellant Raj iv Kumar was working as ·
Deputy Chief Executive Officer (Dy. CEO) in NO IDA w.e.f. 14.06.1994.
He applied for allotment of residential plots under Residential Plots
Scheme No. III of 1994 which dealt with allotment of residential plots to
various category of persons specified therein, in Sectors 41, 49, 51 and
F
53 only. Appellant Raj iv Kumar had applied O!J. 16.08.1994 (Ex. Ka-13)
under Category-VI, as a regular employee of NO IDA, for the larger
size plot, "Plot Code-06" measuring 450 sq.ms., for which he had paid
registration amount of Rs.50,000/-. Notably, the appellant had made a
conscious decision of seeking allotment of a residential plot in Sectors
41, 49, 51 and 53. The lottery was drawn on 21.09.1994 and vide.allotment
G
order dated 27 .09 .1994 (Ex. Ka-29) plot No.B-86 in Sector-51 measuring
450 sq.ms. was allotted to the appellant. The appellant was thus allotted
a plot in Sector-51 exactly of the same description as sought for by him.
12. A pernsal of the terms and conditions of the Scheme for
allotment of residenti11l plots in Sectors 41, 49, 51 and 53 shows that H
604
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A there is no provision for conversion of plots. Even the letter of allotment,
Ex. Ka-29 dated 27 .09 .1994, does not provide for conversion of plots.
On the contrary, Ex. Ka-29 only states that "the allottee (appellant) would
have no right to change of plot or refund of earnest money deposited
by him in the account stated thereon". However, on the very same
B day of allotment i.e. on 27.09.1994, appellant Rajiv Kmnar moved an
application Ex. Ka-30 and sought conversion of his plot measuring 450
sq.m. in Sector-51 to a smaller plot specifically in Sector-14A which is a
developed sector, even though, the scheme or the letter of allotment
(Ex. Ka-29) did not permit the same. The said letter Ex. Ka-30 addressed
to the Chairman reads as under:-
c
D
To
The Chairman
NO IDA
Madam,
"Ext. Ka-30
It is requested that one plot of450 sq. mtr. has been allotted tome
in Sector 51. This Sector is situated at far distance and is not as
per my requirement.
Hence, please allot me one small plot in Sector l 4A in place of
E
this plot. For this I shall be grateful to you forever.
F
Dated27.09.1994"
Yours faithfully
Sd/-
Rajiv Kumar
DCEONOIDA
13. Pursuant to the above request of the appellant (Ex.Ka-30) for
conversicm of plot, his allotment was converted from plot No. B-86 in
Sector-51, measuring 450 sq.ms. to plot No. A-36 in Sector-44, measuring
450 sq.ms. by Ex. Ka-31 dated 15.10.1994. Ex. Ka-31 shows that
G conversion of plot No. B-86 in Sector-51 to plot No. A-36 in Sector-44
was approved by the concerned authorities in Noida. PW-18 G C. Tiwari
has deposed that paper No.8 Ka/96 is carbon copy of the conversion
letter which bears the signature of R.P. Kalra, Development Manager
(Residential). Paper No.Ka/96 dated 15.10.1994 (Ex. Ka-31) which bears
signature of R.P. Kalra, Development Manager (Residential) which
H shows that Raj iv Kumar was allotted plot No.A-36 in Sector-44 in place
RAJIV KUMAR v. STATE OF U.P. AND ANR.
[R. BANUMATHI, J.]
'
605
ofB-86, in Sector-51. From the evidence ofPW-18, it is thus established A
that appellant Rajiv Kumar was allotted plot No. A-36 in Sector-44 in
place of plot No. B-86 in Sector-51. By the evidence of PW-18,
prosecution has proved the first conversion and allotment order i.e. paper
No.8 ka/94 as Ex. Ka-33, Note Sheet paperNo.8 ka/1 dated 15.10.1994,
written by V.K. Sharma, Assistant Development Manager, forwarded
B
to Development Manager Sh. R.P. Kalra and marked to PW-18.
14. Though appellant Raj iv Kumar pleads that there was no double
conversion of plot, the same is falsified by his own application
(Ex. Ka-32), after the appellant's request for conversion of plot was
acceded to by allotting plot No.A-36 in Sector-44, in place of plot
No.B-86 in Sector-51, on the very same date i.e. on 15.10.1994, vid_e
C
Ex. Ka-32 appellant made another application emphasizing allotment of
a smaller plot in Sector-l 4A. Ex. Ka-32 reads as under:-
" Ext Ka-32
To,
D
The Chairman NOIDA
Madam,
It is requested that earlier one plot of 450 sq. mts. was allotted
to me in Sector 51. After this I had requested on 27.09.1994 for
allotmentofone small plot in Sector 14Ain place of this plot. But
E
I have been allotted plot in Sector 44, in place of Sector 14A. The plot allotted in Sector 44 is not according to my
requirement and I am not in position to pay the conversion
charges which being levied.
So, it is again requested that one small plot may be allotted to
F
me only in Sector 14A.
Dated 15.10.1994"
Yours faithfully ...
Sd/-
Rajiv Kumar
Dy. Chief Executive Officer
G
Noida
The above letter Ex. Ka-32dated15.10.1994 clearly shows that
even as per the version of appellant Raj iv Kumar, he was validly allotted
a plot in Sector-44, for which conversion charges were also levied on H
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SUPREME COURT REPORTS
[2017] 9 S.C.R.
the appellant and instead of accepting the allotment and. paying the
conversion charges in lieu thereof, the appellant defiantly declined to
abide by the rnles ofNOIDA.
15. Appellant Raj iv Kmnar, in collusion with appellant Neera Yadav
has not only overlooked the essentials of the Scheme contained in clause
12 viz. allotment to be made on "As is where is basis" but has flouted
the norms of the entire Scheme of allotment of plots by requesting the
appellant Neera Yadav to allot a plot only in Sector-14A. It is a clear
case of flouting the norms and abuse of his position as a public servant.
The irresistible conclusion is that the second application Ex. Ka-32 dated
15.10.1994 given by appellant Rajiv Kumar is only because of the
intervening event, that is allotment of plot No.A-36 in Sector-44. Two
things in Ex. Ka-32 are relevant to be noted:-
(i) the appellant states that the plot allotted to him in Sector-44 is
not as per his requirement and that he is not in a position to pay
the conversion charges;
(ii) tht: appellant demands that he may be allotted a smaller plot
only in Sector-14A.
Even though the appellant pleads ignorance of knowledge about
the said conversion of plot No.B-86, Sector-51 to plot No. A-36,
Sector-44, the same is difficult to digest. The appellant as the Deputy
CEO, must ha.ve been aware of the conversion of his plot to plot No.A-36
in Sector-44. Furthermore, as discussed above in appellant's own letter
Ex. Ka-32, the appellant has stated that allotment of plot in
Sector-44 is not according to his requirement and requested for allotment
of plot only in Sector-14A.
F
16. Subsequently, appellant Rajiv Kumar was allotted plot No.27
measuring 300 sq.ms. in Sector-l 4A in place of plot No.B-86 in Sector51 vide Ex. Ka-33 (Paper No. 8 Ka/94 dated 17.10.1994). The second
conversion of the plot in Sector-;'1:. is contrary to the rules and the
scheme. Paper No. 20ga/1 to 20ga/2 contains NOIDA's office order
dated 03.02.1992 which lays down exhaustive rules with regard to
G conversion of residential plots/houses/flats/apartments. The said office
order begins with the phrase, "in suppression of all previous orders,
conversion of residential plots/llouses/flats/ apartments sltall be
governetl by the conditions as given below:'', meaning thereby that all
the conversions of residential plots/houses/flats/apartments under NO IDA
H have to be strictly in compliance with the terms laid down therein.
RAJIV KUMAR v. STATE OF U.P. AND ANR.
[R. BANUMATHI, J.]
607
17. Ofall the conditions relating to conversion policy, two conditions
A
in th_e office order dated 03.02.1992 are most notable for our purpose.
First, as contained in clause 3, the rider of offering only cancelled and
surrendered plots in conversion. Second, the restriction of allowing
conversion only once, as contained in 3rd para after clause 7. Clause 3
of the said office order dated 03.02.1992 reads as under:
"3. In case of residential plots, only cancelled and surrendered
properties shall be offe1'ed for conversion. However, this shall
not be applicable for conversion of apartment/flat/house. The
details ofavailability of properties shall be available in the office
of Dy. Chief Executive Officer."
-
A perusal of the above clause shows that in case of residential
B
c
plots, only cancelled and surrendered plots can be allotted in conversion
to an allottee. It is also pertinent to note that being Dy. CEO ofNOIDA,
all the details of availability of properties were held with the appellant
Raj iv Kumar, enabling him to abuse his position to pick and manipulate
any property for his benefit. The conversion policy prohibiting conversion D
more than once is contained in 3rt1 para after clause 7 which reads as
under:-
"Conversion shall not be allowed more than once to any allottee."
However, the above conditions were overlooked by the authorities
while allotting plot in favour of appellant Rajiv Kumar. Neither the
restriction of allowing conversion only once in respect ofan allottee was
adhered to, nor was it shown that the plot allotted to appellant Rajiv
Kumar viz. plot No. 27 in Sector-14A was a cancelled or surrendered
plot.
18. After referring to the evidence of PW-18 G.C. Tiwari and
other evidence, the trial court recorded that there was no double
conversion but conversion was done only once on the following grounds:
No order of CEO regarding conversion from Sector-51 to Sector44 has been filed
PW-18 G.C. Tiwari has admitted in his cross-examination that in
1994, no plot in Sector-44 in Noida was cancelled nor surrendered
and a policy was framed about the plot in Sector-J 4A which was
lying vacant that the allotment of this plot will be carried out by
way of conversion.
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G
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A
In Ex. Ka-33, it is not mentioned anywhere that conversion is
being carried out from Sector-44 to Sector-14A; but it is written
that conversion has been done to Sector-14A from Sector-51.
19. In our considered view, on the findings of the trial court as
affirmed by the High Court, the courts were not right in saying that there
: B was no double conversion, rather, conversion was done only once. As
, discussed earlier, in his evidence, PW-18 GC. Tiwari has clearly proved
Ex. Ka-31 (Paper No. 8ka/96), the carbon copy of conversion _letter
b which bears signature ofR.P. Kalra, Development Manager (Residential)
and states that Rajiv Kumar was allotted plot No.A-36 in Sector-44 in
place of plot No. B-86 in Sector-51. It may be that the said conversion
C · letter Ex. ~a-31 dated 15.10.1994, allotting plot No.A-36 in Sector-44
might not have been signed by CCEO Neera Yadav; but there is ample
evidence to show that appellant Rajiv Kumar was allotted plot No.A-36
in Sector-44.
·
~
20. Another reasoning given by the trial court, that in Ex.Ka-33
D instead ofstating that conversion is being carried out from Sector-44 to
Sector-14A; it.is stated that conversion is being carried out from Sector51 to Sector-14A. Trial court's view affirmed by the High Court that
there was only one conversion, may not be a correct view. Ii fs'pertinent
to note that while referring to Ex. Ka-33, the trial court has itself pointed
E
out that some portion of Ex. Ka-33 was torn and that the signature of
Neera Yadav is marked by bracket with red pen. In this regard, there is
no plausible explanation from the accused as to how vital part of the
document was torn.
'
21. As noticed earlier, appellant Raj iv Kumar had sought allotment
of a residential plot under Residential Plots Scheme, 1994 (Ill). Clause
F
12 of the said scheme provides that plots will have to be accepted by the
allottee on "As is where is basis" i.e., it is not the prerogative of the
allottee to bargain with respect to area, and location of the plots. In
clear abuse of position, the said clause and other rules were flouted by
the authorities in case of the appellant Raj iv Kiill!ar. After allotting him
G plot No.B-86 in Sector-51, appellant Rajiv Kumar's allotment was
converted to plot No.A-36 in Sector-44 and thereafter his request for·
·the second conversi_on was immediately acced.ed to.
·
22. Conversion Of guest house to resldentlal plot and
obtaining valuable thing by abusing position: It ·is the case of the
H prosecution that plot No.27 in Sector-14A, which was allotted to the
t
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,...
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j
J
.\
:4
•
• •
•• •
RAJIV KUMAR v. STATE OF U.P. AND ANR.
[R. BANUMATHI, J.]
609
appellant Raj iv Kumar and his wife was originally earmarked as "guest A
house" and not a "residential plot" and that the: appellants, as per their
requirement, conveniently converted the "guest house" to "residential
plot" and allotted the same to the appellant Raj iv Kumar. The prosecution
sh'owed that such conversion was completely illegal as the same is not
envisaged ·in the rules of NOIDA. However, the appellants have B
contended that plot No.27 was never a guest house and it was only plot
No.28 which was reserved for the guest house. In the alternative, the
appellants have also contended that even if plot No.27 was a guest house,
conversion of the same to a residential plot will not amount to change of
user of land and thus, no dishonest intention could be attributed to the
appellants.
C
· 23. As discussed earlier, on 21.09.1994, plot No. B-86 in
Sector-51 was allotted to the appellant. Instead of accepting the said
plot No. A-36 in Sector-44 and paying conversion charges, the appellant
Raj iv Kumar moved an application on 27.09.1994 for conversion of his
_plot to a smaller plot in Sector-I 4A. Being Deputy CEO of NOIDA, o
appellant must have been well aware of allotment of plot No. B-86 in
Sector-51 in the draw oflots. Knowing fully well that he was allotted
plot No.86 in Sector-51, on the very same day of draw of lots i.e. on
21.09 .1994, the.appellant instructed PW-17 Rekha Devyani to alter the
user of plot No.27 in Sector-14A from "guest house" to "residential".
On21.09.1994, on the direction of the appellant, Ex. Ka-17 note was P,Ut
E
up by PW-17 Rekha Devyani for conversion of plot No.27 from guest
house to residential plot and the same was approved by the co-accused
Neera Yadav on 24.09.1994. Plot No.27 in Sector-14A was dishonestly
converted to a residential plot and on 17.10.1994, plot No.27 measuring
300 sq.m. was allotted to appellant Raj iv Kumar and lease deed of plot
F
No.27_ was executed in favour of appellant Rajiv Kumar and _his wife
Smt. Neeva Kumar on 27.07.1995. At first, the appellant deliberately
converted the character of plot )'.:lo.27 from guest house to residential
and also reduced the areas of the plot to 300 sq.ms. and then he applied
·for allotment (Ex. Ka-32) ofa small plot only· in Sector-14A. This
clearly manifests aj)pellant's dishonest intention in seeking allotment of G
a pl qt in a developed se~tor i.e. inSector-14A, at less price ofRs.1200/-
per sq.m. against higher premium of Rs. 4500/-.per sq.m: in that Sector
and also establish~= lack of bonajlde on the part of appellant .. ·· . ·
24. Every decision of the State or its agencies 'like NOIDA
represented by its officers must be founded O!I strong and transparent H
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A ground. In the note put up for conversion of "guest house" to
"residential", no sound reasons were given. Plot No.27 remained as
guest house for quite a long time; while so, what was the necessity to
give direction to convert the same as "residential" is nothing but to suit
the convenience of the appellant and to gain advantage to himself by
B getting a plot in the developed Sector.
25. Cuttings in Ex. Ka 16: In order to bring forth the illegality in
the act of the appellants and the hidden agenda behind such malafide
conversion of plot No.27 from a guest house to a residential plot, the
prosecution has relied upon paper No.Ka/23, which is a photocopy of
proposal dated 28.05.1994 presented by PW-19 S.P. Gautam which is
C the photocopy Qf the actual proposal of converting plot No.27 from guest
house to a residential plot, whieh existed originally and that Ex. Ka-16
is only a subsequent copy of the proposal which has been altered by the
appellants by cuttings and interpolations so as to suit their requirements.
26. Undisputedly, the proposal Ext. A-16 dated 28.05.1994 is
D marked by cuttings and overwritings over two words and one figure. As
pointed out by the High Court, the cuttings, overwritings and interlineations
appear to be quite deliberate and forceful which makes it impossible to
read the underneath writings. We may usefully refer to the following
observations of the High Court:-
E
"no doubt, possibility of human error cannot be ignored in day-today affairs, but the manner of cuttings and overwritings do create
suspicion in the mind of a reasonable prndent man to suggest that
the intention of the appellants lacks bona fide".
The strong 'cuttings' and 'overwriting,\·' made in order to make
F the original words or figures illegible, itself show the dishonest intention
behind the cuttings and overwritings. The manner of cuttings in Ex. A16 itself shows that they are not on account of any clerical mistake or
inadvertent error but they are a deliberate attempt made with ulterior
motive to cause benefit to appellants and clearly they have been made
so substantially that the matter beneath them may not be read by naked
G eyes even after efforts.
27.