Punjab and Haryana High Court: Arvind Singh Sangwan, J., stayed the proceedings against former Chief Minister of Haryana–Bhupinder Singh Hooda with regard to Panchkula Land Allotment case.
The instant petition had been file to assail the impugned order passed by the Special Court, CBI, Panchkula registered under Sections 120-B and 420 of IPC, 1860, Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, vide which while dismissing the application for discharge, charges had been framed against the petitioners.
Factual Fulcrum of the Case
Cancellation of Initial Allotment of the Land
Brief facts of the case were that the petitioner–M/s. Associate Journals Ltd. (AJL) sent a request letter to Sh. Bhajan Lal, the then Chief Minister of Haryana for allotting land to the company for the establishment of an office of National Heralds and Publication of Hindi Newspaper Navjivan. A plot measuring 3360 sq. mts. was allotted to AJL, on the basis of ‘No Profit No Loss’ @ Rs.91 per sq. mts. Later, on 30.10.1992, the plot was resumed by the Estate Officer, HUDA (Haryana Urban Development Authority) , in exercise of powers under Section 17(4) of the HUDA Act, 1977 on the ground that AJL had failed to carry out the construction within the stipulated time as per the terms and conditions of the letter of allotment and an amount of Rs.27300/- was forfeited whereas the balance amount of Rs.1,55,662/- was refunded to AJL through a cheque, which was never encashed by the petitioner – AJL and therefore, the entire allotment amount of the plot remain deposited with HUDA.
Subsequent Allotment made by Former CM-Bhupinder Singh Hooda
Later on, when the Chairman of AJL made few representations to Sh. Bansi Lal, the then Chief Minister for restoration of the plot a noting was recorded to seek opinion of L.R., HUDA which, having been considered as appeal was forwarded to the Town and Country Planning Department and but the same was rejected. In the meantime, the HUDA Act, 1977 was amended on 17-03-2004 and Sub-section (8) to Section 17 was inserted, which provided that an aggrieved person can prefer a revision to the Secretary to Government of Haryana, Town and Country Planning Department. Proviso to Sub-section (8) empowered the Revisional Authority to entertain the revision petition even after expiry of period of limitation if the Revisional Authority would satisfy that aggrieved person was prevented by sufficient cause from filing the revision petition in time. Pursuant to which, AJL again wrote a letter to the petitioner – Bhupinder Singh Hooda, who was the then Chief Minister of Haryana with a request to restore the plot. A recommendation was made by the petitioner – Bhupinder Singh Hooda that the plot be restored to AJL at original price along with interest due upto the date of restoration of allotment and a condition was put that the same should be subject to the condition that the AJL will start the construction in 06 months and complete the same within 02 years, thereafter.
The recommendation of the petitioner–Bhupinder Singh Hooda, was placed before HUDA Authority i.e. the competent authority. Though, there were certain objections raised by some of the functionaries to the effect that the plot may be re-allotted either on the market price or by way of advertising and allowing AJL to participate in the same; the petitioner – AJL remained in continuous possession of this plot since 1981 and at no point of time, even during the period of 10 years when the plot was cancelled by the Estate Officer, no action was taken by HUDA for re-possessing the plot and as such, till 2016, the possession was 35 years old. After the revival of the allotment, the petitioner – AJL completed the construction and started its business.
Alleged Act of Corruption
In the backdrop of the above, the State of Haryana registered an FIR dated 05-05-2016 under Sections 409, 420, 120-B IPC and Section 13 of the Prevention of Corruption Act, 1988, alleging illegality and irregularity in the re-allotment of the institutional plot to AJL. Later on, the Government transferred the investigation to CBI and the present FIR No. RC CHG 2017 A0008 was registered. It was stated in the FIR that in view of the opinion of the Town & Country Planning Department the plot could not be re-allotted as the appellate/revisional order had attained finality and it should be allotted at the current market rates as well as in view of the fact that the HUDA and the Financial Commissioner, Town and Country Planning Department, had proposed that an advertisement be floated for re-allotment of the plot by inviting applications wherein the petitioner – AJL can also apply, the action of the Chairman, HUDA in re-allotting the plot to AJL at old rates applicable in the year 1982 was in conspiracy with each other as the period of construction as per the terms and conditions of the letter of allotment has already lapsed.
It is also concluded in the investigation that the accused i.e. the petitioner – Bhupinder Singh Hooda and the petitioner – AJL, in conspiracy with each other had misused the official position in re-allotment of the plot and thereby causing wrongful loss to State Exchequer and wrongful gain to the petitioner – AJL.
Arguments on Behalf of the Petitioner-accused
It was the case of the petitioner–AJL that since 1981, neither any proceedings for taking the possession were initiated by HUDA nor at any subsequent stage, the order of restoration was challenged before the competent Court of law and therefore, the liability, if any, was purely of civil nature as it is a case of allotment/cancellation of allotment and then restoration of allotment. In addition to that following submissions were made by the petitioners in their defence:
- That the Trial Court had brushed aside all the arguments raised by the petitioners on the ground that at the stage of framing of charges, only prima facie allegation is to be seen and not the documentary evidence; therefore, the impugned order was based on non-application of judicial mind.
- The recommendation for restoration was made in an open and transparent manner as the comments of all the concerned department were sought on the representation made by the petitioner – AJL and the recommendations were placed before the HUDA for approval and consideration. The authority by a full majority as per Section 7 of the Act has taken a decision in its meeting to approve the recommendation dated 28.08.2005.
- The objections were raised by the Chief Administrator, HUDA or the Financial Commissioner, Town and Country Planning Department, who were also signatory to the meeting.
- That the initial allotment was made on the basis of ‘No Profit No Loss’ and the entire price of the plot was deposited by AJL and despite the fact that while the allotment was cancelled by the Estate Officer, HUDA, the cheque of Rs.1,55,662/- was never encashed by AJL and therefore, the total price of the plot throughout remained with HUDA and thus, no loss was caused to HUDA.
- Since AJL throughout remained in possession of the plot for 35 years till registration of FIR and no effort was made by HUDA at any level either to seek the possession of the plot back or subsequent to restoration of allotment, the order was never challenged for a considerable period of 10 years before any competent Court of law.
- The AJL in compliance of the restoration of the allotment of plot had also paid interest to the HUDA and the same was accepted without raising any objection much less challenging this restoration order before any Court. Moreover, it was argued that no offence under Section 120-B IPC was made out as there was no allegation of conspiracy prima facie as per the FIR or the charge-sheet.
Stand taken by the Petitioners regarding Corruption Charge
Regarding the allegation of corruption, the petitioners contended that the offence under Section 13(1)(d) stands deleted in view of the amendment in the Prevention of Corruption Act, 1998 through the Prevention of Corruption (Amendment) Act, 2018, and therefore, the charge-sheet prepared on 30-11-2018, could not be filed under Section 13(1)(d) of the Act. It was further submitted that,
“Objection that the restoration of the allotment of plot was made by not adhering to the market price did not prove any ‘mens rea’ on the petitioner as the market price as assessed at the time of allotment of plot throughout remained with HUDA and was never returned back in pursuance to the cancellation of allotment.”
Relying on the decision in C.K. Jaffar Sharief vs State (through CBI)”, (2013) 1 SCC 205, wherein the Supreme Court had held that, “mere error of judgment or transgression of departmental norms, would not ‘ipso facto’ establish dishonest intention.”; the petitioners argued that even the charge under Section 13(1)(d)(ii) read with Section 13(1)(2)(iii) of the Prevention of Corruption Act, was not made out. It was further pointed out before the Court that in order to frame the charge under Sections 13(1)(d)(ii) and 13(1)(d), the Court had to assign specific reason as to how the offence is made out and the same was missing in the order of the Trial Court. Lastly, it was submitted that it was not the case of CBI that either bribe or gratification was paid, therefore, in the absence of any prima facie evidence that the petitioner – Bhupinder Singh Hooda had acted in a manner that he obtained a valuable thing or pecuniary advantage from AJL, the charge under Section 13(1)(d)(ii) and (iii) was not at all made out.
Considering the abovementioned, the Bench stayed the proceedings before the Trial Court and issued a notice to CBI in that regard. The matter is lighted for 11-08-2021 for further hearing.[Bhupinder Singh Hooda v. CBI, CRR-650-649-2021, order dated 01-02-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For Bhupinder Singh Hooda: Sr. Advocate Kapil Sibal with Advocate Pradeep Poonia, Advocate Adit Pujari and Advocate A.S. Cheema
For AJL: Sr. Advocate R.S. Cheema with Advocate Tarannum Cheema and Advocate Sumanjit Kaur
For CBI: Sr. Advocate Sumeet Goel assisted by Advocate Sameer Rathore and Advocate A.K. Ranolia