[Kangana Ranaut case] C.B.I. investigation and prosecution against BMC officials for misappropriation of public funds in appointing Adv. Aspi Chinoy.

 

[Kangana Ranaut case] C.B.I. investigation and prosecution against BMC officials for misappropriation of public funds in appointing Adv. Aspi Chinoy.

The BMC officials are accused of contempt of Bombay High Courts directions to BMC to not to misappropriate the public money by appointing senior advocates in 'Demolition cases'. 

Payment of 82.50 Lakhs for two dates is misappropriation of Public money and offence under sec. 409,120(B) , 34 of IPC on the part of BMC officials including Commissioner.

Supreme Court had laid down the law that in such cases the investigation should be conducted by the CBI to unearth the complete conspiracy.

 Seprate contempt petition is likely to be filed soon.

Noted RTI Activist Sh. Sharad Yadav files writ petition in Bombay High Court against BMC & Sr. Adv. Aspi Chinoy in seeking CBI inquiry for alleged offences under Sec 409 of IPC/Prevention of Corruption Act and recovering of Rs.82.50 lacs of public money allegedly cheated out of public treasury for a petty case of building demolition of Kangana Ranaut. The petition also seeks recalling of Senior Advocate designation of Sh. Aspi Chinoy, given his conduct against the code of a designated Senior Advocate.

The undue haste by the concerned authority without mentitioning any reason to defy the dirctions by Division bench to not to appoint senior counsel and in first taking the decision to appoint Adv. Aspi Chinoy and then taking post facto sanction is itself  a ground to infer malafides and direct investigation through C. B. I. 

Hon’ble Supreme Court in the case of Noida Entrepreneurs Association Vs. Noida  (2011) 6 SCC 508 had ruled that An Authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other. If a decision is taken by the public authority without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law. The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse etc., acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee. State actions required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law. The Public Trust Doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society.

It is ruled as under;

“    22. It is a settled proposition of law that whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur,  prohibetur at omne per quod devenitur ad illud", which means" "whenever a thing is prohibited, it is prohibited whether done directly or indirectly". (See: Swantraj & Ors. v. State of Maharashtra, AIR 1974 SC 517; Commissioner of Central Excise, Pondicherry v. ACER India Ltd., (2004) 8 SCC 173; and Sant Lal Gupta & Ors. v. Modern Co-operative Group Housing Society Ltd. & Ors., JT (2010) 11 SC 273).

23. In Jagir Singh v. Ranbir Singh & Anr., AIR 1979 SC 381, this Court has observed that an authority cannot be permitted to evade a law by "shift or contrivance." While deciding the said case, the Court placed reliance on the judgment in Fox v. Bishop of Chester, (1824) 2 B &C 635, wherein it has been observed as under:-

"To carry out effectually the object of a statute, it must be construed as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined."

25. While dealing with the issue of haste, this Court in the case of Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia & Ors., (2004) 2 SCC 65, referred to the case of Dr. S.P. Kapoor v. State of Himachal Pradesh & Ors., AIR 1981 SC 2181 and held that:

".....when a thing is done in a post-haste manner, mala fide would be presumed."

26. In Zenit Mataplast Private Limited v. State of Maharashtra & Ors., (2009) 10 SCC 388, this Court held :

"Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law".

27. Thus, in case an authority proceeds in undue haste, the Court may draw an adverse inference from such conduct. It further creates a doubt that if there was no sufficient reason of urgency, what was the occasion for the respondent no.4 to proceed in such haste and why fresh tenders had not been invited.

             34. The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse etc., acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee. State actions required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law. The Public Trust Doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. (Vide: M/s. Erusian Equipment & Chemicals Ltd. v. State of West Bengal & Anr., AIR 1975 SC 266; Ramana Dayaram Shetty v. The International Airport Authority of India & Ors., AIR 1979 SC 1628; Haji T.M. Hassan Rawther v. Kerala Financial Corporation, AIR 1988 SC 157; Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors., AIR 1991 SC 537; and M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors., AIR 1999 SC 2468).

35. Power vested by the State in a Public Authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact-situation of a case. "Public Authorities cannot play fast and loose with the powers vested in them". A decision taken in arbitrary manner contradicts the principle of legitimate expectation. An Authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other. (Vide: Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16; Sirsi Municipality v. Ceceila Kom Francis Tellis, AIR 1973 SC 855; The State of Punjab & Anr. v. Gurdial Singh & Ors., AIR 1980 SC 319; The Collector (Distt. Magistrate) Allahabad & Anr. v. Raja Ram Jaiswal, AIR 1985 SC 1622; Delhi Administration (Now NCT of Delhi) v. Manohar Lal, (2002) 7 SCC 222; and N.D. Jayal & Anr. v. Union of India & Ors., AIR 2004 SC 867).

36. In view of the above, we are of the considered opinion that these allegations being of a very serious nature and as alleged, the respondent no.4 had passed orders in colourable exercise of power favouring himself and certain contractors, require investigation. Thus, in view of the above, we direct the CBI to have preliminary enquiry and in case the allegations are found having some substance warranting further proceeding with criminal prosecution, may proceed in accordance with law.”

Hon’ble Justice Dr. B.S.Chauhan in the case of Prof. Ramesh Chandra Vs State MANU/UP/0708/2007 ruled as under;

“Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law for the reasons that in such a fact situation mala fide can be presumed. Vide Dr. S.P. Kapoor v. State of Himachal Pradesh (AIR 1981 SC 281) ; Madhya Pradesh Hasta ShilpaVikas Nigam Ltd. v. Devendra Kumar Jain and Ors. [(1995) 1 SCC 638] and BahadursinhLakhubhaiGohil v. Jagdishbhai M. Kamalia and Ors (AIR 2004 SC 1159).

Abuse of Power - the expression 'abuse' to mean  misuse, i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means.

Abuse of Power has to be considered in the context and setting in which it has been used and cannot mean the use of a power which may appear to be simply unreasonable or inappropriate. It implies a wilful abuse for an intentional wrong.

 

 1.1.         Section 409 of Indian Penal Code reads as under;

“S. 409 Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, mer­chant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1 [imprisonment for life], or with imprisonment of either descrip­tion for a term which may extend to ten years, and shall also be liable to fine”.

 In Emperor vs Bimla Charan (1913) 35 ALL 361 where it is ruled as under;

I.P.C. Section 406,  408 :- Criminal breach of trust--Water works inspector misappropriating water.

The applicant was a member of the municipality at Cawnpore and one of his duties was to supervise and check  the distribution of water from the municipal water-works. In other words he had dominion over the water belonging to the municipality. He deliberately misappropriated that water for his own use and for the use of his tenants, for which he paid no tax and about which he laid no information to his employers nor obtained permission for tapping the main. In thus misappropriating municipal water the applicant clearly committed the offence described in Section 408 of the Indian Penal Code.

Accused rightly convicted.

It may be that the offences of applicant may be punishable under the Water-Works Act also, but that does not vitiate the conviction under sections, 406 and 408 of the Indian Penal Code.

 

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