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Patna High Court · body

2014 DIGILAW 133 (PAT)

Srikant Prasad v. State of Bihar

2014-01-28

HEMANT KUMAR SRIVASTAVA

body2014
Order This order shall dispose of this petition filed under Section 482 of the Cr.P.C. for quashing the order dated 1.11.2013 passed by learned Special Judge II (Vigilance), Patna-cum-authorized officer in Special Case No. 8/2010 by which and whereunder the application filed by the petitioner, in terms of Rule 11(g) of the Bihar Special Courts Rules, 2010 for taking assistance of any agency for valuation of cost of construction of the building, was rejected. 2. Vigilance P.S. Case No. 81/2009 was registered against the petitioner and others for possessing property disproportionate to his known source of his income and thereafter, a petition under Section 13 of the Bihar Special Courts Act, 2009 (hereafter referred to as the 'Act') was filed before the authorized officer in respect of property including a building of the petitioner. The aforesaid building was valued at Rs. 10,67,532/- by the Technical Cell of Vigilance Department. Notice under Section 14 of the Act was served upon the petitioner calling upon him to show cause as to why property in question should not be declared to have been acquired by means of offence and be confiscated to the State Government. Petitioner responded to the aforesaid notice stating therein that the valuation given by the Technical Cell of Vigilance Department in respect of the above stated building was inflated. Petitioner got the building valued by registered income tax valuer and stated that building in question was worth Rs. 6,99,655.43. Petitioner filed a petition under Rule 11(g) of the Bihar Special Courts Rules, 2010 (hereinafter referred to as the 'Rule') but the learned authorized officer rejected the aforesaid petition passing the order dated 15.4.2013 against which petitioner filed Cr. Misc. No. 23110/2013 before this court and a Bench of this court disposed of the aforesaid Cr. Misc. No. 23110/2013 vide order dated 11.9.2013 holding that the petitioner has at least been able to make out a case with regard to non-supply of details of computation with regard to valuation of the house in question and Vigilance while arriving at a particular point with regard to valuation, is obliged to disclose the exact details with regard to each component and how it arrived at the final figure. It was also observed in the said order that if the above stated details, if not already on record of the case, shall be submitted within a week from the date of passing the above stated order to authorized officer and copy shall be handed over to the petitioner but if the same is already on record, copy of relevant documents be handed over to the petitioner within the same period. It was further observed that the petitioner shall have a chance to file an appropriate rejoinder within the next ten days and after the period for submission of rejoinder by the petitioner, the authorized officer shall fix a date of hearing within the next one week and also pass final orders positively within two weeks thereafter. It was further observed that no indulgence will be given to either side with regard to the time frame fixed by this court and the authorized officer may thereafter, pass an appropriate order keeping in mind the provisions of Rule 11(g) of the Rule. The said Bench also observed that the said order may not be considered to prevent or restrict the authorized officer under the Act in proceeding in the matter with regard to the other issues which are at the stage of argument. 3. After the above stated order dated 11.9.2013 passed in Cr. Misc. No. 23110/2013, Vigilance supplied relevant documents to the petitioner and thereafter a rejoinder was filed on behalf of the petitioner in the court of authorized officer. Learned authorized officer having heard the parties passed the impugned order dated 1.11.2013 rejecting the prayer of the petitioner for taking assistance of the third party for valuation of the house under Rule 11(g) of the Rules. Being aggrieved by the aforesaid order, petitioner filed present petition under Section 482 of the Cr.P.C. 4. Learned counsel appearing for the petitioner challenged the impugned order arguing that valuation report of technical cell of Vigilance Department in respect of the building in question is based on arbitrary selection of parameter and even after supply of relevant documents, it is not clear as to on which basis Technical cell of Vigilance Department valued the aforesaid building. Learned counsel appearing for the petitioner challenged the impugned order arguing that valuation report of technical cell of Vigilance Department in respect of the building in question is based on arbitrary selection of parameter and even after supply of relevant documents, it is not clear as to on which basis Technical cell of Vigilance Department valued the aforesaid building. It is further contended by him that petitioner got the building in question valued from an independent registered valuer of the income tax who based his valuation report on the plinth area rate as well as item rate as prescribed by scheduled rate of the Department of Building Construction. It is further contended by him that there was substantial difference between valuation arrived at by the Technical Cell of Vigilance Department and by independent registered valuer and therefore, it was incumbent duty of the authorized officer to take assistance of the third party but learned authorized officer, without considering the aforesaid fact, rejected the prayer of the petitioner passing the impugned order which is not in accordance with law. 5. It is further contended by learned counsel for the petitioner that proceeding initiated under Section 13 of the Act does not give any right to delinquent public servant to adduce any evidence or to challenge the aforesaid proceeding and the Act as well as Rule are very stringent in nature. It is further contended by him that Legislature has given a right to public servant under Rule 11(g) of the Rules to contest the valuation of property and if any, objection is raised in respect of valuation of property, the authorized officer is duty bound to take assistance of the third party in respect valuation of the property in question. It is further contended by him that the above stated Rule is mandatory in nature and the authorized officer is bound to act in accordance with the above stated Rule but in the present case, learned authorized officer failed to apply the Rule in its right perspective and illegally rejected the prayer to take assistance of the third party in respect of valuation of building in question, particularly, in the circumstance when there was contradiction in both valuation reports. 6. 6. It is further contended on behalf of the petitioner that no doubt, in Rule 11(g) of the Rules, word 'may' has been used but word 'may' has been used in the sense of word 'shall' and therefore, the aforesaid Rule is mandatory in nature. In support of his contention, he referred a decision reported in (2011)9 Supreme Court Cases 354 (Delhi Airtech Services Private Limited and Another vs. State of Uttar Pradesh and Another). In the aforesaid case, the land of the party was sought to be taken for planned Industrial development by invoking emergency provision under Section 17(1) and (4) read with section 4(1) of the Land Acquisition Act, the possession of the land was taken but even after lapse of more than three and a half years of section 6 declaration, no •award was made and published and apart from this, appellants were neither paid 80% of the estimated compensation in terms of Section 17(3-A) of the Land Acquisition Act at the time of taking possession nor the Collector passed an award within two years of making declaration under Section 17(1) of the Land Acquisition Act as allegedly reported by Section 11-A. It would appear from perusal of the aforesaid decision that there was divergent bf the opinion and the matter was referred to larger Bench. 7. Another decision cited on behalf of the petitioner is Dilip N. Shiroff vs. Joint Commissioner of Income Tax, Mumbai and Another reported in (2007)6 Supreme Court Cases 329 in which at para 60, it has been held by the Apex Court of the country as follows:- It is now a well settled principle of law that more stringent the law, more strict construction thereof would be necessary. Even when the burden is required to be discharged by an assessee, it would not be as heavy as the prosecution. 8. In the aforesaid case, assessee submitted his report under the provision of Income Tax Act but later on, his report was found inaccurate and the Apex Court while dealing with Section-271(1)(c) of the Income Tax Act, 1961 hold that by reason of concealment or furnishing of inaccurate particular amount alone, the assessee does not ipso facto become liable for penalty. In the aforesaid case, assessee submitted his report under the provision of Income Tax Act but later on, his report was found inaccurate and the Apex Court while dealing with Section-271(1)(c) of the Income Tax Act, 1961 hold that by reason of concealment or furnishing of inaccurate particular amount alone, the assessee does not ipso facto become liable for penalty. Another decision cited on behalf of the petitioner is the Union of India and Another vs. S.B. Vohra and Others reported in (2004)2 Supreme Court Cases 150 in which at para 27 the Apex Court says as follows:- Prof. Wade, also, in his well-known treatise Administrative Law, 8th Edn.; at P. 609 makes a distinction between a discretionary power and obligatory duties in the following terms: "Obligatory duties must be distinguished from discretionary power. With the latter mandamus has nothing to do: it will not, for example, issue to compel a minister to promote legislation. Statutory duties are by no means always imposed by mandatory language with words such as "shall" or 'must'. Sometimes they will be the implied counterparts of rights, as where a person 'may appeal' to a tribunal and the tribunal has a correlative duty to hear and determine the appeal. Sometimes also language which is apparently merely permissive is constructed as imposing a duty, as where 'may' is interpreted to mean 'shall'. Even though no compulsory words are used, the scheme of the Act may imply a duty. Having developed from a piece of purely administrative machinery mandamus was never subject to the misguided notion which at one time afflicted its less fortunate relative certiorari, that it could apply only to 'judicial' function. Administrative or ministerial duties of every description could be enforced by mandamus. It was, indeed, sometimes said that this remedy did not apply to judicial functions, meaning that where a public authority was given power to determine some matter, mandamus would not lie to compel it to reach some particular decision. The law as to this is explained below under 'Duty to exercise jurisdiction'. The facts that the statutory duty is directory as oppose to mandatory so that default will not invalidate some other action or decision, is no reason for not enforcing it by mandamus." 9. The law as to this is explained below under 'Duty to exercise jurisdiction'. The facts that the statutory duty is directory as oppose to mandatory so that default will not invalidate some other action or decision, is no reason for not enforcing it by mandamus." 9. On the strength of the aforesaid decisions, learned counsel for the petitioner submitted that Rule 11(g) of the Rules makes an obligatory duty upon the authorized officer to take assistance of the independent third party for valuation of the property, if valuation of the property is challenged and contested by public servant and, therefore, on the above stated ground also the impugned order cannot sustain in the eye of law. 10. Learned counsel for the petitioner submitted that no basis has been given by the Superintending Engineer in its letter dated 29.9.2006 with regard to the basis of the plinth area rate and also increase in the rate of the plinth area rate at Rs. 50/- each year and moreover, the aforesaid report is based on hand written report of an Executive Engineer without giving any basis as to on which basis the aforesaid rates were fixed. It is further contended by him that on contrary, report of the independent registered income tax valuer is based on the Government of Bihar schedule rate for the period 2002-03 and the Vigilance could not succeed to controvert the aforesaid report. It is further contended on behalf of the petitioner that report of the Technical Cell of Vigilance Department discloses that the foundation of house in question was pile foundation meaning thereby the house in question was a load bearing structure but the Technical Cell of Vigilance Department took the rate of frame structure into consideration for the purpose of valuation of the aforesaid house. It is further contended on behalf of the petitioner that report of the Technical Cell of Vigilance Department carries several other defects and lacunas but learned authorized officer accepted the aforesaid report ignoring the submissions advanced on behalf of the petitioner and, therefore, the impugned order cannot stand in the eye of law. 11. On the other hand, learned counsel appearing for the Vigilance refuted the above stated submissions arguing that Vigilance Department has its own technical wing and, therefore, there was no occasion for Vigilance to take assistance of the third party for valuation of the property. 11. On the other hand, learned counsel appearing for the Vigilance refuted the above stated submissions arguing that Vigilance Department has its own technical wing and, therefore, there was no occasion for Vigilance to take assistance of the third party for valuation of the property. It is further contended by him that measurement of the house was conducted in presence of wife of the petitioner and thereafter valuation report was prepared on the basis of the prescribed rate of the Government and, therefore, it cannot be said that valuation report of the Technical cell of Vigilance Department is exorbitant. 12. It is further contended by learned counsel for Vigilance that Rule 11(g) of the Rules is not a mandatory provision and therefore, it is not obligatory on the authorized officer to take assistance of the third party for valuation report whenever valuation report of prosecution is challenged by delinquent public servant and mere satisfaction of the authorized officer is sufficient to proceed with the proceeding initiated under Section 13 of the Act relying upon valuation report submitted by the prosecution. It is further contended by learned counsel for Vigilance that in case of Shiv Shankar Verma Vs. State of Bihar reported in 2014(3) PLJR 813, a Bench of this court has already held that proceeding under Section 13 of the Act is of a summary nature and the said proceeding must be decided within the timeframe in the aforesaid Act. It is further contended by him that, as a matter of fact, petitioner has preferred this petition with an intention to delay the aforesaid proceeding and therefore, this petition should be dismissed on admission stage itself. 13. Before discussing the facts of the present case, I would like to refer, Section 13 of the Act which runs as follows:- "Confiscation of property.-(1) Where the State Government, on the basis of prima facie evidence, have reasons to believe that any person, who has held or is holding public office and is or has been a public servant has committed the offence, the State Government may, whether or not the Special Court has taken cognizance of the offence, authorise the Public Prosecutor for making an application to the authorized officer for confiscation under this Act of the money and other property, which the State Government believe the said person to have procured by means of the offence. (2) An application under sub-section (1)- (a) shall be accompanied by one or more affidavits, stating the ground on which the belief, that the said person has committed the offence, is founded and the amount of money and estimated value of other property believed to have been procured by means of the offence; and (b) shall also contain any information available as to the location for the time being of any such money and other property, and shall, if necessary, give other particulars considered relevant to the context." Furthermore, I would like to refer Section 14 of the Act which runs as follows:- "Notice for Confiscation.-(1) Upon receipt of an application made under section 13 of the Act, the authorized officer shall serve a notice upon the person in respect of whom the application is made (hereafter referred to as the person affected) calling upon him within such time as may be specified in the notice, which shall not be ordinarily less than thirty days, to indicate the source of his income, earnings or assets, out of which or by means of which he has acquired such money or property, the evidence on which he relies an other relevant information and particulars, and to show cause as to why all or any of such money or property or both, should not be declared to have been acquired by means of the offence and be confiscated to tile State Government. (2) Where a notice under sub-section (1) to any person specifies any money or property or both as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person. (3) Notwithstanding anything contained in sub-section (1), the evidence, information and particulars brought on record before the authorized officer, by the person affected or the State Government shall be open to be rebutted in the trial before the special court provided that such rebuttal shall be confined to the trial for determination and adjudication of guilt of the offender by the Special Court under this Act." 14. I would also like to refer Section 15 of the Act which runs as follows:- "Confiscation of property in certain cases.-(1) The authorized officer may, after considering the explanation, if any, to the show cause notice issued under Section 14 and the materials available before it, and after giving to the person affected (and in case here the person affected holds any money or property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any other money or properties in question have been acquired illegally. (2) Where the authorized officer specifies that some of the money or property or both referred to in the show cause notice are acquired by means of the offence, but is not able to identify specifically such money or property, then it shall be lawful for the authorized officer to specify money or property or both which, to the best of his judgment, have been acquired by means of the offence and record a finding, accordingly, under sub-section (1). (3) Where the authorized officer records a finding under this Section to the effect that any money or property or both have been acquired by means of the offence, he shall declare that such money or property or both shall, subject to the provisions of this Act, stand confiscated to the State Government free from all encumbrances: Provided that if the market price of the property confiscated is deposited with the authorized officer, the property shall not be confiscated. (4) Where any share in a company stands confiscated to the State Government under this Act, then the Company shall, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) or the Articles of the Association of the Company, forthwith register the State Government as the transferee of such share. (5) Every proceeding for confiscation of money or property or both under this Chapter shall be disposed of within a period or six month from the date of service of the notice under sub-section (1) of Section 14. (6) The order of confiscation passed under this Section shall, subject to the order passed in appeal, if any under Section 17, be final and shall not be called in question in any Court of Law." 15. (6) The order of confiscation passed under this Section shall, subject to the order passed in appeal, if any under Section 17, be final and shall not be called in question in any Court of Law." 15. Admittedly, Section 24 of the Act gives power to the State Government to make rule for carrying out the purposes of the said Act and in exercise of the power envisaged in Section 24 of the Act, State Government framed Bihar Special Courts Rules, 2010 which was published in the Gazette on 11.2.2010. 16. Here, I would like to refer Rule 11(g) of the Bihar Special Courts Rules, 2010 which runs as follows:- "If the delinquent public servant purposes to contest the valuation of the property, the authorized officer may take assistance of such State Government agency or Central Government agency or any other officer or person technically qualified as he may deem fit and proper." Furthermore, I would like to refer Rule 11(h) of the Bihar Special Courts Rules, 2010 which runs as follows:- "The authorized officer, on consideration of statement of defence, reply of public prosecutor and report of experts, if any, shall adjudicate the proceeding and will pronounce final verdict within a maximum period of 6 months from the day of service of notice." 17. Now, avert to the fact of the case. Admittedly, Special Public Prosecutor was authorized by State to file petition under Section 13 of the Act before the authorized officer, Patna and in pursuance of the aforesaid authorization, Special Public Prosecutor filed petition under Section 13 of the Act on 16.8.2010 praying therein to confiscate the property of the petitioner annexed with the aforesaid petition. The detail of the property was given in the aforesaid petition and the above stated property included one house which was valued at Rs. 10,67532/-. The petition under Section 13 of the Act discloses that the aforesaid valuation was made by the Technical Cell of Vigilance Department. It is also an admitted position that notice was served upon the petitioner calling upon him to show cause as to why the aforesaid property including the said house be not confiscated and vested in the State of Bihar and in response to the aforesaid notice, petitioner filed his statement of defence and supplementary reply and thereafter, Special Public Prosecutor filed his reply. Furthermore, it is an admitted position that while the aforesaid case was pending for argument, a petition under Rule 11(g) of the Rules was filed on behalf of the petitioner challenging the valuation report of Vigilance cell. Learned authorized officer vide order dated 15.4.2013 rejected the aforesaid petition and thereafter, against order dated 15.4.2013, petitioner filed Cr. Misc. No. 23110/2013 which was disposed of by a Bench of this court vide order dated 11.9.2013 giving direction to Vigilance to hand over the exact details with regard to each component and how it arrived at the final figure in respect of valuation of the aforesaid house and also gave liberty to the petitioner to file rejoinder challenging valuation report. 18. Admittedly, Vigilance furnished the details of computation of valuation of the house at the direction of this court and the petitioner challenged the aforesaid computation of valuation of the house under Rule 11(g) of the Bihar Special Courts Rules, 2010 and after that learned court below passed the impugned order accepting valuation report submitted by the Vigilance Department. 19. Admittedly, Section 13 of the Act does not give any right to delinquent employee to adduce evidence as per provision of the Evidence Act and only Rule 11(g) of the Bihar Special Courts Rules, 2010 gives opportunity to delinquent employee to contest valuation of property. 20. Although, in Rule 11(g) of the Rules word 'may' has been used but admittedly, Section 13 of the Bihar Special Courts Act is a very stringent provision as confiscation proceeding under section 13 of the Act does not give any right to delinquent employee to adduce evidence as per Evidence Act and the aforesaid Act is very stringent in nature. However, Rule 11(g) of the Bihar Special Courts Rules, 2010 gives an opportunity to delinquent employee to challenge only valuation report of technical expert. However, Rule 11(g) of the Bihar Special Courts Rules, 2010 gives an opportunity to delinquent employee to challenge only valuation report of technical expert. Valuation report of technical expert can only be challenged by delinquent employee in course of proceeding of Section 13 of the Act under Rule 11(g) of Rules and it cannot be challenged by delinquent employee in the trial before the special court in view of Section 14 sub-clause (3) which says that notwithstanding anything contained in sub-section (1), the evidence, information and particulars brought on record before the authorized officer, by the person affected or the State Government shall be open to be rebutted in the trial before the special court provided that such rebuttal shall be confined to the trial for determination and adjudication of guilt of the offender by the Special Court under this Act. 21. Therefore, it is clear that if valuation report is accepted by authorized officer in course of confiscation proceeding initiated under Section 13 of the Act, the aforesaid valuation report cannot be challenged even in course of trial before the Special Court. It would appear from the aforesaid provision that delinquent employee has got only one opportunity to challenge valuation report of technical expert in course of confiscation proceeding. 22. No doubt, Rule 11 (g) of the Bihar Special Courts Rules, 2010 does not appear to rile a mandatory provision but the aforesaid rule casts a heavy duty upon authorized officer to apply his judicial mind before accepting the valuation report, if it is contested and challenged by the delinquent employee. The aforesaid rule reflects that authorized officer should not accept valuation report submitted by the prosecution as gospel truth, particularly, in the circumstance when it is challenged and contested by the delinquent employee and before accepting valuation report; the authorized officer should be vigilant and cautious. 23. In the instant case, admittedly, Vigilance submitted valuation report of house in question alongwith petition under Section 13 of the Act but Vigilance did not disclose the method on the basis of which the aforesaid valuation report was prepared and when this court intervened into the matter; Vigilance furnished computation and calculated chart before authorized officer. 23. In the instant case, admittedly, Vigilance submitted valuation report of house in question alongwith petition under Section 13 of the Act but Vigilance did not disclose the method on the basis of which the aforesaid valuation report was prepared and when this court intervened into the matter; Vigilance furnished computation and calculated chart before authorized officer. The Vigilance disclosed that the aforesaid valuation report had been prepared on the basis of rate furnished by the Superintending Engineer, Building Construction Department, Patna vide his letter dated 25.9.2006 but the aforesaid letter of the Superintending Engineer does not disclose as to whether rate furnished by the Superintending Engineer was approved by the Government or not. 24. Admittedly, in the instant case, petitioner got the house in question valued by the registered income tax valuer who based his report on the schedule rate of Government of Bihar. Furthermore, it is an admitted position that there is major difference in respect of valuation of house in question between the above stated two reports. Furthermore, it is an admitted position that report of the Technical Cell of Vigilance Department disclosed that foundation of house in question was pile foundation but valuation of the aforesaid house was assessed at the rate of frame structure. Apart from this, there are several other contradictions in both the aforesaid reports. Therefore, there was obligatory duty upon the authorized officer to take assistance of third party in the light of Rule 11(g) of the Bihar Special Courts Rules, 2010. 25. No doubt, it is not necessary that in each and every case the authorized officer is bound to take assistance of third party in respect of valuation of property whenever valuation of property is challenged by a delinquent employee but when delinquent employee while challenging valuation report of property submitted by the prosecution succeeds to create even a slighter doubt in the mind of authorized officer about valuation report of property submitted by the prosecution, it is incumbent duty of the authorized officer to take assistance of ,third party as prescribed in Rule 11(g) of the Bihar Special Courts Rules, 2010. 26. 26. It is an admitted position that the present confiscation proceeding is pending for argument, since long and Act as well as Rule prescribe a fixed period for disposal of the proceeding but admittedly, Vigilance did not give the method of calculation of valuation of house in question till commencement of the arguments in the aforesaid case and when the petitioner challenged valuation report of Vigilance and the matter came before this court, a Bench of this court directed the Vigilance to disclose the exact details with regard to each component and how it has arrived at the final figure. After direction of this court, Vigilance furnished exact details in respect of valuation of house in question. Therefore, it cannot be said that on account of laches on the part of the petitioner proceeding in question could not be concluded within the prescribed period. However, when petitioner got opportunity to see the exact details in respect of valuation report of house, he challenged the aforesaid report under Rule 11(g) of the Bihar Special Courts Rules, 2010 and succeeded to create doubt in respect of valuation report of Vigilance in respect of house in question. Therefore, in my view, learned authorized officer committed error in rejecting the prayer of the petitioner and the impugned order is liable to be quashed. Accordingly, the impugned order dated 1.11.2013 passed by learned authorized officer, Vigilance, Patna is, hereby, quashed and the matter is sent back to learned authorized officer, Vigilance, Patna with direction to him to pass a fresh order on the rejoinder of the petitioner filed under Rule 11 (g) of the Bihar Special Courts Rules, 2010 within one week from the date of receipt of this order and thereafter shall proceed with the proceeding in accordance with law. However, if the authorized officer has already passed final order under Section 15 of the. Act in the confiscation proceeding, this order shall not make any affect on final order passed by authorized officer under Section 15 of the Act and the petitioner shall be at liberty to raise his grievance before appropriate authority when the above stated final order passed in confiscation proceeding is challenged in appeal. 27. In the aforesaid manner, this petition stands disposed of.