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2009 DIGILAW 652 (PNJ)

Suresh Goel v. State Of Haryana And Others

2009-04-15

HEMANT GUPTA, T.S.THAKUR

body2009
Judgment Hemant Gupta, J. 1. The petitioner, alleging himself to be a social worker, has approached this Court, seeking directions to the respondents to conclude the inquiry/investigation with regard to alleged scam of allotment of plots in Marble Market, Sector 21 -C, Faridabad. 2. It is averred by the petitioner that being a social spirited person, he has made representations, which were taken into consideration for inquiry/investigation against the local builders and the employees of the Haryana Urban Development Authority (for short HUDA). The petitioner was associated in the said inquiry by the State Vigilance Bureau, as well as by the Additional Director, HUDA. But the said inquiry has not been taken to its logical conclusion. 3. It is pleaded that in the year 2000, a scheme was floated by HUDA, to shift Marble dealers from Sectors 20-A and 20-B to Marble Market Sector 21 -C, Faridabad. The commercial plots at Sector 21-C, Faridabad, as per the scheme, were to be allotted to the existing firms. The total number of plots was 103. It is averred that at that time, there were 25 existing firms in dealing with Marble in Sectors 20-A and 20-B, Faridabad. A list thereof, has been appended as Annexure P.2 to the writ petition. It is alleged that with the collusion of local builders and some employees of HUDA, vexatious firms, were created. Such firms were not having any address or sale tax number. Such unregistered firms, were created for the purpose of grabbing the said commercial plots in the Marble Market, Sector 21-C, Faridabad. As per the scheme, unallotted plots were to be allotted by open auction, but allotments were made in the names of fictitious firms. It is also pointed out that such plots could not be transferred but the plots allotted in the names of fictitious firms, were immediately transferred in the names of local builders. The inquiries were initiated on the complaint of the petitioner, but the same have not concluded. The petitioner has appended list of fictitious firms as Annexure P.4 with the paper book, though no reference of such list is made in the writ petition. 4. On 28.8.2008, the petitioner agreed to file an affidavit specifically stating the firms, which were fictitious and non-existent on the date of allotment. The petitioner has appended list of fictitious firms as Annexure P.4 with the paper book, though no reference of such list is made in the writ petition. 4. On 28.8.2008, the petitioner agreed to file an affidavit specifically stating the firms, which were fictitious and non-existent on the date of allotment. The petitioner filed an affidavit dated 4.9.2008, giving the names of 30 firms, which were in existence at the time of publication of the scheme as against 25 mentioned in the writ petition. The petitioner also averred in para No. 6 of the said affidavit that 31 firms are fictitious, created to grab the plots in the Marble Market. The petitioner has also stated to the following effect:- "10. That the deponent has been deprived of the opportunity which he, along with the public, could have got by participating in an open auction of the allotment of the above said plots. And he would have got an opportunity to purchase a plot in an open auction and to do business to earn his livelihood from that plot. Therefore, as per the deponent he has been deprived of his fundamental rights." 5. On the filing of such an affidavit, the respondents were given time to file counter affidavit. In reply, it was pointed out that a preliminary inquiry was conducted by Shri Ramesh Kumar, Assistant Sub Inspector. Such inquiry conducted by the Assistant Sub Inspector, was not found to be satisfactory by this Court on 29.09.2008, as there was no record relating to said inquiry nor there was any formal inquiry report. Resultantly, the Chief Administrator, HUDA, was directed to hold an inquiry into the allegations made by the petitioner and to submit a report to this Court, after associating the petitioner in the inquiry. 6. In the written statement filed on behalf of HUDA, it was pointed out that there were number of marble trading shops scattered on the outskirts of different sectors of Faridabad. The said marble traders had to repeatedly shift to different locations due to acquisition of land for development of sectors. The marble traders formed an Association and made repeated representations for setting up a special market. It was decided to set up a marble market in Sector 21-C Part-1, Faridabad, in which 103 plots were carved out. The said marble traders had to repeatedly shift to different locations due to acquisition of land for development of sectors. The marble traders formed an Association and made repeated representations for setting up a special market. It was decided to set up a marble market in Sector 21-C Part-1, Faridabad, in which 103 plots were carved out. Out of the list submitted by the Faridabad Marble Vayapar Mandal, 83 members were found genuine and eligible but only 63 applied for plot with 10% earnest money out of which 60 were found in order and approved by the Chief Administrator. It was also pointed out that since number of marble traders were existing in different sectors of Faridabad, different Associations were formed and made applications with the request to allot the remaining plots to their members on the same terms and conditions on which 60 plots were allotted by draw. Two of such Associations filed civil suits against the auction of the plots planned by HUDA. The complaints filed by few, including the one by the petitioner, was found to be false and filed on 22.11.2005. 7. The Chief Administrator, had submitted a detailed inquiry report dated 18.2.2009 in terms of the directions issued by this Court on 29.09.2008. It has been reported that as per Annexure P.4,36 firms were fictitious, but the name of firm at Serial Nos. 12 and 13 has been repeated, leaving the number at 35. The investigations were carried out by the Chief Administrator, in respect of 35 firms named in Annexure P.4. The petitioner was heard and was also associated in the course of inquiry. The Chief Administrator, visited Faridabad on 22.12.2008 and perused the entire record in the Estate Office, including the sales tax numbers and other records of the firms. Out of 35 firms, sales tax number were found to be issued to 19 firms prior to the date of survey and their names also figured in the survey dated 29.2.2001, carried out by HUDA. The said firms were also registered with the Faridabad Marble Vyapar Mandal (for short the FMVM). Thus said 19 firms were kept out of the purview of the inquiry as such allotment to such firms could not be said to be bad. One firm, namely, M/s Trishul Marbles & Granite, had surrendered the allotment. The said firms were also registered with the Faridabad Marble Vyapar Mandal (for short the FMVM). Thus said 19 firms were kept out of the purview of the inquiry as such allotment to such firms could not be said to be bad. One firm, namely, M/s Trishul Marbles & Granite, had surrendered the allotment. Therefore, further inquiry was limited to the remaining 15 firms in respect of their genuineness or otherwise. 8. Show cause notices were issued to the said firms to produce original documents to find out whether such firms were really in existence and working at the time of survey and that the allotments were not fictitious. Out of these 15 cases, ownership in 11 cases stood transferred and, therefore, the notices were issued to the transferees as well. All the 15 allottees submitted written statements and given common evidence i.e., an appeal dated 9.11.1998 from the President of the FMVM addressed to the Honble Minister of Urban Development, Government of Haryana, for allotment of commercial sites, wherein names of their firms existed. Such reliance was to prove that the said firms had actually been running their units before the date of survey i.e. 27.2.2001. The Chief Administrator also considered the evidence produced by the said firms, which includes the record of registration of the firms; telephone bills; sales tax registration number etc. It was concluded as under :- "A. From careful perusal of all relevant records and hearing the parties, I am of the opinion that most of the allotments were made to the persons, who were running marble business at one site or the other before they were allotted the present sites, except in following cases where there is doubt because they could not produce any documentary evidence in support of the fact that they were running marble business before the date of survey :- (i) Classic Marbles - Site No. 62 and M/s Vasundhra Marbles - Site No. 67 :- Both the above sites were allotted to father and son. They could not produce any authentic evidence in support of the fact that they were doing marble business prior to the date of survey but have produced some bills of purchases from other parties i.e., M/s Shubham Marbles & Granite, M/s Rahul Hardware & Diamond Tools and bills/cash memo issued by itself in case of M/s Classic Marbles and from M/s Shubham Marbles & Granite, M/s Bhagwati Marble & M/s Rahul Hardware & Diamond Tools and bills/cash memo issued by itself in case of M/s Vasundhra Marbles. Moreover, one of the sites has already been disposed off which puts a question mark on the allotment of two sites to the same family. (ii) M/s Balaji Enterprises - site No. 132 :- The original allottee was admittedly doing the work of preparing only name plates of brass material in 100 sq. yds near Thomson Press, which was also rented out to him. However, if we consider the market conditions prevailing at that time, it can be seen that the property prices were not such which could have made people to form fictitious firms and apply in their names which is evident from the following facts:- a) Out of 133 persons/firms, who were members of the two Associations, only 63 persons/firms applied for allotment of plots alongwith earnest money. b) Even out of these 63 persons/firms, 2 persons withdrew their requests and took back the earnest money before allotment. c) The allottee of site No. 99, namely, M/s Trishul Marbles and Granite surrendered the site after allotment." Therefore, above facts fortify the impression that only those persons, who were either running marble business or were interested ir running the same, applied for allotment of sites. However, there were some lacunae in the scheme in the sense that the HQs did not prescribe any procedure for identification of the beneficiaries and left it to the field staff. Instead, it should have made it compulsory to obtain some documentary proof like Sales Tax No., Electricity Connection, Telephone No., Income Tax Returns etc., to prove the claim but since this was not in the scheme of things, it was not insisted upon the field office. It was ascertained that some photographs were taken at the time of survey, but same could not be found despite best efforts. It was ascertained that some photographs were taken at the time of survey, but same could not be found despite best efforts. It is only subsequently that when the property prices have arisen enormously, that people are thinking in retrospect about fictitious firms. B. There was no bar on transfer of these sites either in the Scheme approved by the Authority or the instructions issued by the HQs and therefore, if the sites have been transferred after allotment, it is not in contravention of any Rules/Instructions. C. As far as reduction in the rates from Rs. 7000/- per sq. yd. to Rs. 6000/- per sq. yd., is concerned, there is no infirmity at all because the rates have been reduced after representations made by the allottees on the ground that cost of acquisition was wrongly taken to be of Sector 21- C (Part-Ill) instead of Sector 21 -C (Part-I) while calculating the rates of Rs. 7000/- per sq. yd. The rates were revised downwards after taking into account correct cost of acquisition and it has the approval of the highest decision making body of the organization i.e. the "Authority" and there is absolutely no malafide. D. It is interesting to note that two sites were allotted to the petitioner/complainant and his family, M/s Vishnu Marbles - site No. 14 & M/s Shiv Stone House - site No. 113 and he has already transferred one of these sites No. 14 to Shri Rahul Sharma, s/o Shri R.S. Sharma. Hence, neither there was any baron allotment of more than one site to one family nor the possibilities can be ruled out that more than one member of the family were doing this business." 9. The petitioner filed objections to the report of the Chief Administrator, HUDA. It has been alleged that the inquiry report is false, frivolous and vexatious and beyond the truth and travesty of the true facts. The petitioner alleged that 19 firms found by the Chief Administrator to be genuine is incorrect as only seven plots out of 19 plots are genuine plots. It has been alleged that the inquiry report is false, frivolous and vexatious and beyond the truth and travesty of the true facts. The petitioner alleged that 19 firms found by the Chief Administrator to be genuine is incorrect as only seven plots out of 19 plots are genuine plots. In respect of Bharat Marble and Bajrang Hardware Store, it was alleged, they were running their business in Tikona Park and not in Sector 20-A and 20- B; whereas M/s G.N. Marble, Jai Jagdamba Marble, Kapil Marble and Granites, Laxmi Rattan, Zee Marble Shop, Kasturba Shyam Marble, Marble Centre, Ankesh Marble have given wrong sale tax registration number. It was alleged that other firms have given the premises on rent after allotment. It was alleged that Zee Marble shop has given fake sales tax registration number of 1977 where there was no shop of marble in entire District of Faridabad. It has been stated that remaining 15 firms have given fake sales tax number and are bogus firms. In respect of the finding that two sites were allotted to the petitioner and his family, it was stated by the petitioner as under :- "(D) That in reply to the contents of para No. (D) of the Enquiry Report it is submitted that in compliance of general letter issued by the Administrator, HUDA, Faridabad in March, 2001 Vishnu Marble through its partners Smt. Prema Devi and Satish Goel, who is the nephew of petitioner had applied for allotment of one site and given application in the name of M/s Vishnu Marble and site No. 14 was allotted to Vishnu Marble after the draw in accordance with law, but later on the nephew of the petitioner Satish Goel had left the firm in which the wife of petitioner Smt. Prema Devi and Satish Goel were partners, in his place Rahul Sharma the son of Radhey Shyam Sharma has started working along with the wife of petitioner, but that Rahul Sharma has taken the thumb impression of wife of petitioner without the knowledge of the petitioner and got transferred the plot No. 14 in his name, while as per Rules, HUDA cannot transfer the site unless and until the seller and purchaser both are physically present in their office. Information to this effect has been given by the HUDA authorities vide their letter dated 24.12.2008. Information to this effect has been given by the HUDA authorities vide their letter dated 24.12.2008. So far the allotment of Site No. 113 is concerned, the same has been allotted in the name of petitioner firm M/s Shiv Stone House in the draw and the petitioner firm is having the sales tax registration number of 1992, hence there is no question of having any more than one site to one family by the petitioner." 10. The contents of such counter objections are verified by the petitioner to be true and correct to his knowledge. The petitioner has also filed an affidavit in support of such objections verifying that the contents of para Nos. A to F and 1 to 4 are true and correct to the best of his knowledge. 11. It was also stated that nothing is false or has been concealed therefrom. During the course of hearing, learned counsel for the petitioner submitted that certain firms, which were earlier stated by him to be fictitious, were actually genuine. The petitioner was asked to file an additional affidavit, but instead of filing an affidavit, he made a solemn affirmation, which reads as under:- "I have gone through the inquiry report submitted by Shri T.C. Gupta. M/s Amba Marbles & Granites, M/s Mahesh Marbles, M/s N.R. Marbles, M/s Shree Trupati Stone, M/s Swastika Marbles and M/s S.K. Marbles referred to in that report are genuine concerns to my knowledge and also as per report. It is true that in Para No. 6 of my additional affidavit filed on 4th September, 2008, I had enumerated 31 different firms, which were stated to be fictitious including the one mentioned above but that statement was -made by me on account of some mistake and not deliberately. It is also correct that in my additional affidavit, I have not mentioned anything about my having taken a plot in the name of M/s Shiv Stone or my nephew Satish Goel who is also an allottee of the plot with my wife as a partner in the firm." 12. After hearing learned counsel for the parties at some length, we are of the opinion that the inquiry conducted by the Chief Administrator, HUDA, gives cogent reasons based upon facts and circumstances to conclude that the 19 firms out of the list of 35 firms given by the petitioner, are genuine. After hearing learned counsel for the parties at some length, we are of the opinion that the inquiry conducted by the Chief Administrator, HUDA, gives cogent reasons based upon facts and circumstances to conclude that the 19 firms out of the list of 35 firms given by the petitioner, are genuine. The names of such 19 firms existed in the survey list dated 27.2.2001. Even as per counter affidavit filed by the petitioner, seven firms out of 19 firms found genuine by the Chief Administrator are genuine. The said assertion in the objections dated 4.3.2009 submitted by the petitioner are contrary to the affidavit dated 04.09.2008 sworn by the petitioner. The firms stated to be fake by the petitioner are for the reason that they were not dealing with mable in Sectors 20-A and 20-B or that sales tax numbers are of the year 1977 or do not relate to the firms that have been allotted the plots. The said assertion is not tenable, inter alia, for the reason that the petitioner has not produced the documents to show the assertion of said 19 firms to be incorrect before the learned Chief Administrator. Still further, the mere fact that M/s Bharat Marble or M/s Bajrang Hardware Store were running their business in Tikona Park and not in Sector 20-A or 20-B is immaterial. In fact, they were running the Marble business in Faridabad. M/s Zee Marble Shop is stated to be registered in the year 1977. Except the bald statement that said firm has given sales tax number of the year 1977 there is nothing on the record to show that said registration number is incorrect. Similar allegation of wrong sales tax number of other firms is based upon ipsi dixi of the plaintiff without producing any document to show that the sales tax registration number of such firms is incorrect and in what manner. 13. We also find that the conclusion drawn by the Chief Administrator, HUDA, in respect of the remaining 15 firms, is reasonable and possible conclusion drawn on the basis of documents produced before him. The allegations leveled by the petitioner are omnibus. The name of all the firms found mention in the representation submitted by Faridabad Marble Vayapar Mandal. The petitioner has not been able to bring any document to so as to contradict the finding recorded by the Chief Administrator. The allegations leveled by the petitioner are omnibus. The name of all the firms found mention in the representation submitted by Faridabad Marble Vayapar Mandal. The petitioner has not been able to bring any document to so as to contradict the finding recorded by the Chief Administrator. In view of the facts now brought on record, the conclusion drawn by the Chief Administrator, does not warrant any further investigation or action by this Court. 14. The petitioner had stated on solemn affirmation in his affidavit dated 4.9.2008 that firms at serial Nos. 14 and 23 of para 6, were fictitious. But in his statement before the Court, the same are stated to be genuine. Seven firms have been said to be genuine in his affidavit dated 04.03.2009 out of 19 firms found by the Chief Administrator to be genuine. The petitioner has earlier averred in his affidavit that such firms were fake. It shows that the averments made in the affidavit dated 4.9.2008 declaring that the said firms are fictitious, is not correct as per the stand of the petitioner himself. The said affidavit was filed in pursuance of an order passed by this Court on 28.8.2008. Such stand of the petitioner shows that he did not make truthful statement in his affidavit dated 4.9.2008. 15. Still further, the petitioner has approached this Court alleging himself to be a social worker. The petitioner has not disclosed in the writ petition that he was also one of the applicants and has been allotted a plot in the Marble Market. In fact, the inquiry report discloses that two sites bearing Nos. 14 and 113, were allotted to the petitioner and his family members. In the counter objections, the petitioner has not disputed the allotment of site No. 113 to him. However, in respect ofallotment of site No. 14, the petitioner has not disputed the allotment but averred that Vishnu Marbles has two partners i.e., Smt. Prema Devi and Satish Goyal. Prema Devi is the wife of the petitioner and Satish Goyal is his nephew. The said site was allotted in a draw, but later on Satish Goyal, left the firm and Shri Rahul Sharma, had started working along with the wife of the petitioner. Prema Devi is the wife of the petitioner and Satish Goyal is his nephew. The said site was allotted in a draw, but later on Satish Goyal, left the firm and Shri Rahul Sharma, had started working along with the wife of the petitioner. The petitioner has averred that Rahul Sharma, has taken the thumb impression of the petitioners wife without the knowledge of the petitioner and got transferred plot No. 14 in his name. 16. The petitioner has not disclosed in the writ petition or in affidavit dated 4.9.2008 that he was allotted a plot in his individual right, whereas another plot was allotted to a firm of which his wife was a partner. Such non-disclosure of material facts, clearly shows that invocation of the jurisdiction of this Court in public interest, lacks bona-fide. It may be noticed that in affidavit dated 4.9.2008, the petitioner had made categorical statement that he has been deprived of an opportunity to participate in an open auction to purchase a plot and to do the business to earn his livelihood. The said averment made in affidavit dated 4.9.2008, is obviously incorrect in view of the finding recorded in the inquiry report and admitted by the petitioner in his objections dated 4.3.2009, supported by an affidavit. The statement of the petitioner in the affidavit dated 4.9.2008 that he has been deprived of an opportunity of participation for purchasing a plot in an open auction, is false. Even the statement in the affidavit dated 4.9.2008, that two firms, as referred to above, out of the list of 31 firms, were not genuine, is again false. We, thus, find that the writ petition is nothing but gross abuse of process of law. 17. The petitioner had consistently made false averments on affidavit and has, thus, committed perjury. In the facts aforesaid, it is a fit case where the petitioner has made himself liable for prosecution for the offence under sections 191 and 193 of the Indian Penal Code, 1860. But, keeping in view the age of the petitioner, we do not wish to initiate prosecution against the petitioner. Consequently, the writ petition is dismissed with costs. Costs assessed at Rs. 10,000/- The petitioner shall deposit the costs within one month with the Haryana State Legal Services Authority, Chandigarh. Petition dismissed.