CA NO.251 OF 2017 WITH CA NO.252 OF 2017

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 251  OF 2017

RAJIV KUMAR                                                  …Appellant

Versus

STATE OF U.P. AND ANR.                           ...Respondents

With

CRIMINAL APPEAL NO. 252  OF 2017

NEERA YADAV                                                    …Appellant

Versus

C.B.I.                              ...Respondent

J U D G M E N T

R. BANUMATHI, J.

These  appeals  impugn  the  common  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-B  IPC  and

Section 13(2) read with Section 13(1)(d) of Prevention of Corruption

Act,  1988  (for  short  ‘the  P.C.  Act’)  and  also  the  sentence  of

Page No.1 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

imprisonment for three years and a fine of Rs.50,000/- imposed on

each of the appellants for conviction under Section 120-B IPC.  The

High Court  also confirmed the sentence of  imprisonment  for  three

years and fine of Rs.50,000/- imposed on appellant Rajiv Kumar for

conviction under Section 13(2) read with Section 13(1)(d) of P.C. Act

with default clause.   

2. It is a well known fact that New Okhla Industrial Development

Authority U.P. (hereinafter referred to as "NOIDA") was established in

the year  1976 with  the responsibility  of  developing  and  managing

Asia’s largest Integrated Industrial Township for the industrial growth

of the area, under the Uttar Pradesh Industrial Area Development Act,

1976 in the National  Capital Region.  Administration of  NOIDA was

entrusted to high level public officials so as to develop a planned,

integrated, modern Industrial City, well connected to Delhi through a

network  of  roads,  national  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 marred by

Page No.2 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

land  allotment  scams  worth  crores  of  rupees,  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

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 CBI registered an F.I.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

Page No.3 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

Neera  Yadav  held  the  post  of  CCEO  of  NOIDA  for  the  period

10.01.1994 to 08.11.1995.  

4. Adverting  to  appellant  Rajiv  Kumar  in  Criminal  Appeal

No.251/2017, it turns out that he served as Deputy Chief Executive

Officer, NOIDA 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  Rajiv  Kumar  contrary  to  the

rules. Case of the prosecution is that on the application of appellant

Rajiv Kumar, Plot No. B-86 of 450 sq.ms. in Sector-51 was allotted to

him. Appellant Rajiv Kumar requested for conversion of his plot, even

by  smaller  size  in  Sector-14A.  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-14A on  Delhi  border  with  approval  of

appellant Neera Yadav on 15.10.1994.  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 lease deed,

Page No.4 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

on application of  wife  of  appellant  Rajiv  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 28.10.1995, the proposal for its

allotment  to  appellant  Rajiv  Kumar  by  way  of  enhancement  was

approved  by  appellant  Smt.  Neera  Yadav  on  05.11.1995  and  the

same was allotted to Rajiv 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(1) of P.C. Act and after completion of investigation

into the allegations levelled against the 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 Rajiv Kumar.  

5. Trial  was  conducted  by  the  Special  Judge,  CBI,  whereby

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

Page No.5 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

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

House as a residential  plot.   In  any case,  conversion of  a plot

reserved for Guest House to a residential plot, does not amount to

change in the nature of use of plot as both fall under the same

category  of  ‘residential’.   Plot  No.27  in  Sector-14A,  which  was

allotted to him, was never a guest house rather plot No.28 was the

guest house and, hence, the allegation of illegal conversion of the

guest house to residential plot is baseless.

• By conversion of  plot  to  Sector-14A,  the appellant  has actually

compromised with the area of the 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 any

pecuniary advantage to the appellant.

• With  regard  to  allotment  of  additional  area  of  105  sq.ms.,  the

appellant paid extra charges for the said land and the High Court

erred in holding that there was mis-utilisation of the said area of

105 sq.ms. By getting the said additional land, the appellant had

actually benefitted NOIDA, as the concerned piece of  land was

found in excess of adjoining plot No.28 and it would have been of

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

appellant-Neera  Yadav  and  that  the  contradictory  versions  of

Page No.7 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

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 committed 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 Rajiv Kumar in

most  developed area.  It  was further contended that  the appellant

Neera Yadav, being the CCEO of NOIDA 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

discharge of regular official work and for doing so she may not be

held  guilty  for  committing  any  criminal  conspiracy  under  

Section  120-B IPC  or  for  committing  any  offence  of  criminal

misconduct  under Section  13(2)  read  with Section  13(1)(d)  of P.C.

Act.

8. Per  contra,  learned  Solicitor  General  Mr.  Ranjit  Kumar

contended that the courts below have rightly convicted the appellants

Page No.8 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

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.I.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.  

10. 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

as 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(1)(d) read with Section 13(2) of P.C.

Act  lays  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.— (1)  A public  servant  is  said  to  commit  the  offence  of  criminal misconduct, (d) if he,—

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

Page No.9 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

(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  pecuniary  advantage  without  any  public interest; or”

A perusal of the above provision makes it clear that if the elements of

any of the three sub-clauses are met, the same would be sufficient to

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

to criminal misconduct.   On the same reasoning under Section 13(1)

(d)(ii) of P.C. Act “obtaining a valuable thing or pecuniary 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

Intention of the Appellants: Appellant Rajiv Kumar was working as

Deputy  Chief  Executive  Officer  (Dy.  CEO)  in  NOIDA  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

Page No.10 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

Sectors 41, 49, 51 and 53 only. Appellant Rajiv Kumar had applied on

16.08.1994 (Ex. Ka-13) under Category-VI, as a regular employee of

NOIDA, 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 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  perusal  of  the  terms  and  conditions  of  the  Scheme  for

allotment of residential plots in Sectors 41, 49, 51 and 53 shows that

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  day  of  allotment  i.e.  on  27.09.1994,

appellant Rajiv Kumar moved an application Ex. Ka-30 and sought

conversion of his plot measuring 450 sq.m. in Sector-51 to a smaller

Page No.11 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

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:-  

“Ext. Ka-30 To

The Chairman NOIDA

Madam,  It is requested that one plot of 450 sq. mtr. has been allotted to me 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 14A in place of this plot.  For this I shall be grateful to you forever.  

Yours faithfully Sd/-

Rajiv Kumar DCEO NOIDA

Dated 27.09.1994” 13. Pursuant to the above request of the appellant (Ex.Ka-30) for

conversion 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 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,

Page No.12 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

Development Manager (Residential) which shows that Rajiv Kumar

was allotted plot No.A-36 in Sector-44 in place of B-86, in Sector-51.

From the evidence of  PW-18,  it  is  thus established 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 paper No.8 ka/1 dated 15.10.1994, written

by  V.K.  Sharma,  Assistant  Development  Manager,  forwarded  to

Development Manager Sh. R.P. Kalra and marked to PW-18.  

14. Though appellant Rajiv 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, vide

Ex. Ka-32 appellant made another application emphasizing allotment

of a smaller plot in Sector-14A. Ex. Ka-32 reads as under:-

“Ext Ka-32 To,

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 allotment of one small plot in Sector 14A in place of this plot. But I have been allotted plot in Sector 44, in place of Sector 14-A.  The  plot  allotted  in  Sector  44  is  not  according to  my

Page No.13 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

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 me only in Sector 14A.

Yours faithfully  Sd/-

         Rajiv Kumar Dy. Chief Executive Officer

Noida Dated 15.10.1994”

The above letter Ex. Ka-32 dated 15.10.1994 clearly shows that even

as per the version of appellant Rajiv Kumar, he was validly allotted a

plot in Sector-44, for which conversion charges were also levied on

the appellant and instead of accepting the allotment and paying the

conversion charges in lieu thereof, the appellant defiantly declined to

abide by the rules of NOIDA.

15.  Appellant Rajiv Kumar, 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

Page No.14 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

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)  the  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  have 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.

16. Subsequently, appellant  Rajiv  Kumar was allotted plot  No.27

measuring  300  sq.ms.  in  Sector-14A in  place  of  plot  No.B-86  in

Sector-51 vide Ex. Ka-33 (Paper No. 8 Ka/94 dated 17.10.1994). The

second conversion of the plot in Sector-14A 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

Page No.15 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

regard  to  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/houses/flats/

apartments  shall  be  governed  by  the  conditions  as  given

below:“, meaning  thereby  that  all  the  conversions  of  residential

plots/houses/flats/apartments  under  NOIDA  have  to  be  strictly  in

compliance with the terms laid down therein.   

17. Of all the conditions relating to conversion policy, two conditions

in the 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 offered for conversion.  However, this shall not be applicable for conversion of apartment/flat/house. The details of availability 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 plots,

only cancelled and surrendered plots can be allotted in conversion to

an allottee.  It is also pertinent to note that being Dy. CEO of NOIDA,

all the details of availability of properties were held with the appellant

Rajiv  Kumar,  enabling  him  to  abuse  his  position  to  pick  and

Page No.16 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

manipulate  any  property  for  his  benefit.   The  conversion  policy

prohibiting conversion more than once is contained in 3rd 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 of an 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 Sector-44 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-14A

which was lying vacant that the allotment of this plot

will be carried out by way of conversion.

Page No.17 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

 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 was no double conversion, rather, conversion was done only

once. As discussed earlier, in his evidence, PW-18 G.C. Tiwari has

clearly  proved Ex.  Ka-31  (Paper  No.  8ka/96),  the  carbon copy of

conversion letter which bears signature of R.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  letter  Ex.  Ka-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

instead of stating that conversion is being carried out from Sector-44

to Sector-14A, it is stated that conversion is being carried out from

Sector-51  to  Sector-14A.   Trial  court’s  view affirmed  by  the  High

Court that there was only one conversion, may not be a correct view.

Page No.18 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

It is pertinent to note that while referring to Ex. Ka-33, the trial court

has itself pointed 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 Rajiv Kumar had sought allotment

of  a  residential  plot  under  Residential  Plots  Scheme,  1994  (III).

Clause 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

Rajiv Kumar.  After allotting him 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 conversion was immediately

acceded to.  

22. Conversion  of  guest  house  to  residential  plot  and

obtaining valuable thing by abusing position:  It is the case of the

prosecution that plot No.27 in Sector-14A, which was allotted to the

appellant  Rajiv  Kumar  and  his  wife  was  originally  earmarked  as

Page No.19 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

“guest 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 Rajiv Kumar.

The prosecution showed that such conversion was completely illegal

as the same is not envisaged in the rules of NOIDA. However, the

appellants have 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.  

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

Rajiv Kumar moved an application on 27.09.1994 for conversion of

his plot to a smaller plot in Sector-14A. Being Deputy CEO of NOIDA,

appellant must have been well aware of allotment of plot No. B-86 in

Sector-51 in the draw of lots.  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

Page No.20 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

the  user  of  plot  No.27  in  Sector-14A  from  “guest  house”  to

“residential”.  On  21.09.1994,  on  the  direction  of  the  appellant,

Ex. Ka-17 note was put 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

Rajiv Kumar and lease deed of plot 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 No.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) of a small plot only in Sector-14A.  This clearly manifests

appellant’s  dishonest  intention  in  seeking  allotment  of  a  plot  in  a

developed  Sector  i.e.  in  Sector-14A,  at  less  price  of  Rs.1200/-

per  sq.m.  against  higher  premium of  Rs.  4500/-  per  sq.m.  in  that

Sector and also establishes lack of bona fide on the part of appellant.

24. Every  decision  of  the  State  or  its  agencies  like  NOIDA

represented  by  its  officers  must  be  founded  on  strong  and

transparent  ground.   In  the  note  put  up  for  conversion  of  “guest

Page No.21 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

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 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  mala fide

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 the photocopy of the actual proposal of converting plot No.27 from

guest house to a residential  plot,  which 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

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

Page No.22 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

it impossible to read the underneath writings.  We may usefully refer

to the following observations of the High Court:-

“no  doubt,  possibility  of  human  error  cannot  be  ignored  in day-to-day affairs, but the manner of cuttings and overwritings do create  suspicion  in  the  mind  of  a  reasonable  prudent  man  to suggest that the intention of the appellants lacks bona fide”.  

The strong ‘cuttings’ and ‘overwritings’ made in order to make the

original words or figures illegible, itself show the dishonest intention

behind  the  cuttings  and  overwritings.  The  manner  of  cuttings  in

Ex.  A-16 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 eyes even after efforts.

27. It  is  the  case  of  prosecution  that  paper  No.23-A  is  the

photocopy of the actual proposal of converting plot No.27 from guest

house to a residential plot, which existed originally and that Ex. A-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.  In order  to  bring forth the illegality in  the act  of  the

appellants and the  mala fide conversion of plot  No.27 from “guest

house” to “residential plot”, by subsequent cuttings and interpolations,

Page No.23 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

the prosecution has relied upon paper No.23-A, which is a photocopy

of proposal dated 28.05.1994. PW-21 Dev Dutt (the then Dy.CEO)

has deposed in the court to the effect that cuttings in Ex. A-16 dated

28.05.1994 were made subsequently. PW-21 Dev Dutt produced a

copy  of  paper  No.23-A  which  does  not  have  any  cuttings  and

overwritings. He deposed that the true photo copy of Ex. A-16 signed

by  him  and  approved  by  CCEO  on  31.05.1994  and  that  its

photo-copy was obtained and kept by him even after his retirement in

view  of  repeated  re-organization  of  plots.  Notably,  during

cross-examination of PW-21 Dev Dutt, it was never suggested to him

that the copy of paper No.23-A produced by him as true photo copy of

original proposal Ex. A-16, is not the true copy of the original or has

been fabricated in connivance with prosecution or otherwise. PW-21

has no animosity with the appellants nor has it been suggested so to

doubt the veracity of PW-21 Dev Dutt.  In the light of his testimony,

we find no merit in the arguments of the appellants that prosecution

has failed to prove that cuttings or interpolations in Ex. A-16 dated

28.05.1994 were subsequently made by PW-19 S.P. Gautam.  

28. Most  importantly,  the  expert  evidence  on  record,  proves  it

beyond doubt that the words and figures, which were hidden beneath

Page No.24 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

the strong cuttings and overwritings were the words such as ‘guest

house’, ‘re-organisation’ etc. In light of the above evidence, it stands

proved that  the appellants deliberately and  malafidely manipulated

the records of  NOIDA to conceal their  illegal  acts.  As held by the

Courts below, there are no inherent improbabilities in the evidence of

PW-21 as the same is well corroborated by the expert evidence.  

29. Too many changes  made  in  the  site  plan  of  Sector-14A

within short span of time:  Exhibits A-18 to A-23 maps depict the

change in spot position of relevant plots in Sector-14A from July 1984

to November, 1999. A perusal of the exhibited maps shows that from

1984 to 1993, for nearly about a decade, there was no alteration in

the area and position of  plot  Nos.  26,  27 and 28.  However, from

10.01.1994 to  08.11.1995 the area and position of  the plots  were

changed at least five times. In the table given in the judgment of the

High Court in para No. (22), frequent alteration of plots and dishonest

intention of the appellants in altering the plots to their own advantage

and reduction of the area of the unnumbered plot is amply evident.

We may usefully refer to the said tabular form as given by the High

Court which reads as under:-

Page No.25 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

Sl. No.

Plot No. Map No.1 Ext. A-18 July 1984

Map No.2 Ext.A-19 11.2.94

Map No.3 Ext.A-20 11.2.94 (wrongly showing Road  in East)

Map No.4 Ext.A-21 28.5.94 Before Cuttings

Map No.5 Ext.A-22 28.5.94 After cuttings

Map No.6 Ext.A-23 Latest  31.10.99 w.e.f. 6.11.95

Area  of appurte nant Green Belt  in North

Total area of plot  with appurtenant Green Belt

1 26 630.00 450.00 450.00 562.50 562.50 562.50 783.86 1346.36 2 27 482.50 450.00 450.00 525.00 300.00 405.00 535.15 940.75 3 28 371.25 450.00 450.00 487.50 487.50 487.50 593.4 1080.71 4 Unnumbered

plot  towards West

NIL 529.35 304.35 90.00 304.35 Trapezium of (3.16+9.57)/2 ×30=231.45

49.8 240.75

5 Green  Belt Area towards West

Rectangle of (7.93×30) =237.90

Rectangle of (7.93×30= 237.90

Rectangl e  of 7.93×30= 237.90

Trapezium (7.23+7.93)/ 2×30=227.4

Rectangl e  of 7.93×30= 237.90

Trapezium of (7.93+7.50)2 ×30=231.45

- 231.45

6 Total Area 2311.65 2706.29 2481.89 2493.89 2445.89 2469.74 - 3840.02

Note: As seen from the endorsement in the above maps, the maps have been prepared by the architect and the Chief Architect Planner (30.10.1999) with reference to the letter No. Dy.SP.ACU VII/1999/0603 dated 08.09.1999 and direction given by the SP ACU VII CBI and in the meeting held on 25.10.1999 and 28.10.1999.   

30. The data contained in maps Exs. Ka-18, Ka-19, Ka-20, Ka-21,

Ka-22 and Ka-23, depicts frequent alterations made in these plots.

Ex.  Ka-18  shows  that  in  July,  1984,  plot  Nos.  26,  27  and  28

measured 630 sq.ms., 482.50 sq.ms. and 371.25 sq.ms. respectively.

Thereafter, position of plots on 11.02.1994 is depicted through two

distinct  maps  contained  in  Ex.  Ka-19  and  Ex.  Ka-20.  Notably,

Ex.  Ka-20  contains  wrong depiction  of  plots,  as  on 11.02.1994;  it

shows road on the eastern side of plot No.26 which was introduced

for  the  first  time  on  the  direction  of  appellant  Neera  Yadav  vide

proposal  Ex.  A-16  dated  28.05.1994,  which  was  approved  by

appellant  Neera  Yadav  on  31.05.1994.  As  per  Ex.  Ka-19,  as  on

11.02.1994, plot Nos.26, 27 and 28 measured 450 sq.ms. each and

Page No.26 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

additionally  unnumbered  plot  measuring  529.35  sq.ms.  was  found

available  and over  the time the same was reduced to  small  area

about 96.00 sq.m.   

31. Two most notable aspects come out from the said data. First,

the fact that there was no alteration in size and position of the plots in

Sector-14A  from  1984  to  1993  for  around  a  decade;  but  from

10.01.1994 to  08.11.1995 the area and position of  the plots  were

changed at least five times.  Be it noted, the period from 10.01.1994

to  08.11.1995,  NOIDA  was  managed  under  the  chairmanship  of

appellant Neera Yadav. Second, alteration of size of plot No.27 from

450 sq.ms. to 525 sq.ms. to 300 sq.ms. and finally to 405 sq.ms.

(after allotment of additional area) was done without any reasonable

justification. The appellants failed to give any reasonable justification

for effecting such material alterations in the site plan of plot No.27

number of times, within such a short span of time of one and a half

years. Also, the provision of 7.50 ms. wide road to the right of plot

No.26 is completely devoid of any justification.  As also available on

record,  appellant  Rajiv  Kumar  and Neera  Yadav got  allotted  plots

adjacent to each other viz.  plot Nos.26 and 27, followed by about

8 mts. or 26 feet wide green belt and Delhi Border in West about 10

Page No.27 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

meters or 33 feet very wide green belt in North and 40 feet wide road

in South.  All these alterations in the site plan of Sector-14A reflect

nothing but dishonest intention of the appellants to gratify their private

interest instead of public interest, which they were lawfully entrusted

with to take care of.  

32. Alteration of position of plots was not an exercise of power in

good faith.  In this regard, we may usefully refer to the decision in

Noida  Entrepreneurs  Association  v.  NOIDA and  Ors.  (2011)  6

SCC 508, wherein this Court highlighted the nature of powers and

duties vested in a public authority in the following words:

“41. 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  (1973) 1 SCC 409; The State of Punjab and  Anr.  v.  Gurdial  Singh  and  Ors.  (1980)  2  SCC  471;  The Collector  (Distt.  Magistrate)  Allahabad  and  Anr.  v.  Raja  Ram Jaiswal  (1985) 3 SCC 1; Delhi Administration (Now NCT of Delhi) v. Manohar  Lal  (2002)  7  SCC 222;  and N.D.  Jayal  and Anr. v. Union of India and Ors. (2004) 9 SCC 362).”

Page No.28 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

33. Undue  haste  in  conversion  and  allotment:   In  the  entire

sequence  of  events,  starting  from  applying  for  allotment  of  a

residential plot under Scheme III of 1994 and securing an allotment in

Sector-14A by undergoing two conversions,  undue haste shown in

getting plot No.27 in Sector-14A allotted is evident from more than

one aspect. Firstly, on the very same day i.e., 27.09.1994 on which

plot No. B-86 in Sector-51 was allotted to the appellant, he applied for

conversion of the plot to a smaller plot in Sector-14A. Secondly, on

the very same day i.e. 15.10.1994, when plot No.A-36 in Sector-44

was  allotted  to  him,  appellant  Rajiv  Kumar  made  application

Ex. Ka-32 requesting for allotment of plot in Sector-14A.  On the very

same date i.e. on 15.10.1994, Ex. Ka-34 was put up for conversion of

plot  No.  A-36  in  Sector-44  (450  sq.ms.)  to  a  smaller  plot  in

Sector-14A and the same was approved by Neera Yadav on the very

same day i.e. 15.10.1994.  It passes one’s comprehension as to how

quickly  everything  happened  on  the  same  day.  That  apart,

immediately the demand of the appellant was fulfilled and within two

days i.e. on 17.10.1994, plot No.27 of 300 sq.ms. in Sector-14A was

allotted to him.  Undue haste only leads to an adverse inference.  

Page No.29 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

34.   While  dealing  with  the  issue  of  haste,  after  referring  to  a

number of judgments in Noida Enterpreneurs Association v. Noida

and Others, (2011) 6 SCC 508, this Court held as under:-

“28. While  dealing  with  the  issue  of  haste,  this  Court  in Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia  (2004) 2 SCC 65, referred to S.P. Kapoor (Dr.) v. State of H.P. (1981) 4 SCC 716 and held that: (Jagdishbhai M. Kamalia case (2004) 2 SCC 65 , SCC p. 75, para 25)

“25. … when a thing is done in a post-haste manner, mala fides would be presumed….”

29. In  Zenit Mataplast (P) Ltd. v.  State of Maharashtra  (2009) 10 SCC 388 this Court held: (SCC p. 399, para 39)

“39. Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law….”

30. 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 Respondent 4 to proceed in such haste and why fresh tenders had not been invited.”

In  the present  case also,  undue haste shown at  every stage only

leads to an inference of abuse of position and arbitrariness and also

the conspiracy.  

35. Allotment of additional area: Yet another abuse and misuse of

position by the appellants is manifested in allocation of the additional

area.   After  execution  of  the  lease  deed,  within  three  months  on

26.10.1995, wife of the appellant who is a co-allottee of plot No.27 in

Sector-14A, filed a representation stating that due to lesser width of

the concerned plot, after leaving space as per prescribed setback, it

Page No.30 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

was not possible to construct a house and, therefore, requested that

the width of the allotted plot should be increased by 3.50 mtrs. and an

additional  area  of  105  sq.ms.  may  accordingly  be  allotted.   Here

again, within two days, on 28.10.1995, a note was put up (Ex. Paper

79 ka/1) for  allotting additional area of  105 sq.ms. in which it  was

proposed that the required additional area could preferably be taken

from the adjacent plot i.e. plot No.28.       Ex. Paper 79 ka/1 was

approved by Neera Yadav on 05.11.1995.   Ex. Paper 79 ka/1 reads

as under:-

“  Paper No.79Ka/1

Please refer to the application received from Smt. Neeva Kumar allottee of plot no.27/14A. The allottee has been allotted the plot of 300 Sq.M. its dimension is 10 m. × 30 m. As per the principles of planning  it  will  be  appropriate  that  for  residential  plots,  ratio  of length and width should be from 1 : 2 to 1 : 2.5, ratio of this plot is 1:3  and  after  leaving  side  set  back  of  3.0  m,  it  would  not  be practically possible to construct a house of appropriate design. A demand has been made by the allottee for enhancing its breadth by 3.5 m. From this, the size of plot would be 13.5 m × 30 m (area 405.0 sq.m) and ratio of length and width would become in between 1:2 to 1:1.5. If there is un-allotted plot from amongst the adjoining plots,  it  can  be  done  by  taking  additional  area  from  it.  By  this adjustment, there would be no effect on any aspect of land use, traffic pattern density, etc of Sector lay out. Therefore, in view of planning, there is no objection on it. Forwarded for consideration and approval.

Sd/- Rekha Devyani T.P. 28.10.1995

C.A.P. Sr. D.M. (R)  

Page No.31 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

Sd/-   Tribhuwan Singh

28.10.1995 With reference to above this is to inform that plot no. 28/14A is in available list, hence 3.5 mtr × 30 mtr. Area can be given out of this plot.

C.C.E.O Sd/-

(G.C. Tiwari) 05.11.1995

Approved Sd/- Neera Yadav 05.11.1995”

36. Astonishingly, the additional  area requested by the appellant

sought  to  be  taken  from  the  adjoining  plots,  that  extra  space

measuring 3 mtrs., was already available in plot No.27, and the same

was supposedly revealed on actual measurement of the site.  The

relevant note Ex. Ka-27 reads as under:-

“  Ext Ka-27

As  per  the  layout  plot  of  Sector-14A the  Plot  No.  27  is measuring 10 m. × 30 m. and plot No. 28 is measuring 16.25 × 30 m. while on actual measurement of the site it has been found that a 3 M. wide extra length of land is available along the road. As per the discussions held in this regard the boundary wall of the plot No. 28 is being constructed with the dimension of plot as 16.25 × 30 m. as per shown in the layout plan and the 3 m. wide extra space which is available at site has been included in the dimension of plot No. 27 which will now be measuring 13 × 30 m. It is requested that the same may be finally approved so that  the DM(R) and Town Planner  could  be  informed  accordingly  to  finally  incorporate  the same in their records also.

Submitted please. Sd/-

(A.K. Goel) PROJECT ENGINEER (III)

CCD-III, NOIDA D.C.E.O.

Page No.32 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

NOIDA above is approved.

Sd/- (Rajiv Kumar)

D.C.E.O., NOIDA 01-12-95”

The appellant’s wife had asked for an additional area of 105 sq.m.

vide letter dated 26.10.1995 and surprisingly the same area is stated

to be available on ground in Plot No.27. One fails to understand as to

how  the  exact  area  as  requested  by  the  appellant’s  wife  could

actually  be  available  in  the  plot.  However,  an  additional  note  in

Ex. Ka-27 exists which states that the additional area sought for was

already available in plot No.27; this clearly shows that the intention of

the appellants was to dishonestly derive benefit  from the valuable

property of NOIDA. The swiftness with which the appellant got the

allotments done in his favour and the undue haste with which the

whims and fancies of  the appellant  was gratified,  clearly establish

abuse of power in his case, as only an officer of NOIDA could have

commanded such  a  privilege  of  getting  things  done with  such  an

ease. The aspect of abuse of power and lack of public interest in the

action  of  the  appellant  becomes  even  more  manifest  when  the

illegality in conversion of plot is discussed in detail.  From the above

facts proved on record, it is clear that appellant Rajiv Kumar abused

Page No.33 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

his position as a public servant to obtain for himself a valuable thing

which in this case, is the very plot allotted jointly to him and his wife.   

37. Obtaining pecuniary advantage for himself: As per clause 6

of the Scheme, the premium amount to be paid for seeking a plot in

the  above-mentioned  Sectors  is  fixed  at  Rs.1,200/-  per  sq.m.  for

regular plots and Rs. 1,230/- per sq.m. for the corner plots. Clause 6

of the Scheme reads as under:-

“6. Premium of Plot:

(i) The premium of the regular plot will be Rs.1200/- per sq. m. The premium of  plots  located at  corner  or  facing  park  or Green belt facing major road (a road with width of 18 ms. and above) will be Rs.1215/- per sq.m.  In the event of the plot having located at corner and facing major road or corner and facing park the premium of plot  will  be Rs.1230/-  per sq.m.

(ii) Any  enhancement  in  land  compensation  will  also  be recoverable from the allottees.”

38. Be  it  noted  that  the  said  premium  amount  of  Rs.1,200/-

per sq.m. was fixed only for the plots in Sectors 41, 49, 51 and 53

and not for the plots in highly developed Sectors like Sector-14A. It is

also pertinent to note here that the appellant had paid the premium

amount  of  Rs.1,200/-  per  sq.m.  while  seeking  an  allotment  in

Sector-51  and  later  the  same  premium  amount  was  held  to  be

sufficient for plot No.27 in Sector-14A; no additional premium amount

was paid to match the high premium amounts of plots in developed

Page No.34 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

sectors  like  that  in  Sector-14A.  How high the premium amount  of

plots in Sector-14A was at that point  of  time could be ascertained

from the fact that for the allotment of additional area of 105 sq.m. in

plot No.27 in Sector-14A as per the request of appellant’s wife, the

appellant himself had paid premium amount of Rs.4,500/- per sq.m.  

39. A  copy  of  provisional  allotment  certificate  dated  27.09.1994

w.r.t. plot No.B-86 in Sector-51, as contained in Ex. Ka-29 provides

that Plot No.86, Block B, Sector-51 was allotted to appellant Rajiv

Kumar on ‘as is where is basis’ on lease for a period of 90 years

from the date of execution of lease deed. In the details of the allotted

plot, it was clearly mentioned that a premium amount of Rs.5,40,000/-

@ Rs.1200/- per sq.m. needs to be deposited by the allottee. This

makes it  clear that the plots in Sector-51 were allotted in lieu of a

premium amount @ Rs.1200/- per sq.m. It is noteworthy that three

category  of  charges  find  place  in  the  letter  of  NOIDA  dated

15.10.1994  (Ext.  Ka-31)  viz.  ‘cost  of  additional  area’,  ‘conversion

charges’,  and ‘location benefit  charges’.  Although,  only conversion

charge  was  applicable  in  case  of  conversion  of  plot  No.  B-86  in

Sector 51 to plot No.A-36 in Sector-44, but it is apparent that ‘cost of

additional area’ and ‘location benefit charges’ could also be attracted

Page No.35 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

in  case of  conversion.  As discussed earlier, appellant Rajiv Kumar

was  further  successful  in  securing  conversion  of  plot  No.A-36  in

Sector-44  to  plot  No.27  in  Sector-14A.  Plots  in  Sector-14A were

reserved to be allotted by way of conversion only, pursuant to a policy

decision reflected in  the minutes of  the meeting dated 03.01.1986

(Paper  No.  317  Kha/2  to  317  Kha/61).   Then,  plot  No.27  in

Sector-14A,  initially measuring 300 sq.m. was allotted in favour  of

appellant Rajiv Kumar and his wife, by imposing a conversion charge

of Rs.1,20,000/- at the rate of Rs.400/- per sq.m., as reflected in letter

dated 17.10.1994   (Ex. Ka-33). However, the premium amount in lieu

of 300 sq.m. was charged at the rate of Rs.1200/- per sq.m. only.

Despite clear difference in the rates of the property of two Sectors,

same premium amount at the rate of Rs.1200/- per sq.m., as was

levied on the appellant at the time of allotment of plot in Sector-51,

was levied at the time of allotment of plot No.27 in Sector-14A. More

so,  in  spite  of  huge  difference  in  locational  benefits  of  a  plot  in

Sector-14A as compared to a plot in Sector-51, no charge under the

head ‘location benefit charge’ was levied on the appellant.

40. Vide letter  dated  06.11.1995  (Paper  No.  8Ka/70),  appellant

Rajeev Kumar was informed that area of plot No.27 was enhanced

Page No.36 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

by  105  sq.m.,  in  lieu  of  which  a  total  premium  amount  of

Rs.4,72,500/- at the rate of Rs.4,500/- per sq.m. was levied on the

appellant.  It  thus  becomes  apparent  that  rate  of  premium  with

respect to plot No.27 in Sector-14A was fixed for the additional area

at Rs.4,500/- per sq.m., as was paid by the appellant.  On the other

hand,  in  lieu  of  300  sq.ms.  of  plot  No.27,  the  appellant  got  it

converted at Rs.3,60,000 at the rate of Rs.1200/- per sq.m.  Ideally,

as per actual rate, he ought to have paid Rs.13,50,000/- at the rate

of  Rs.4,500/-  per  sq.m.  The  appellant  clearly  derived  pecuniary

advantage of Rs.9,90,000/- which was a huge amount in the year

1994 and thus the appellant obtained a valuable thing for himself i.e.

plot  No.27  in  Sector-14A.   This  is  nothing  but  abuse  of  official

position for obtaining valuable thing or pecuniary advantage.    

41. Insofar  as  enhancement  of  the  area  of  plot  No.27  in

Sector-14A allotted to appellant Rajiv Kumar, by 105 sq.m., it has

come on record that the same is in grave violation and disregard of

Rules of NOIDA.  Clause 11 of 1994 (iii)  Scheme states that the

area of a plot allotted or handed over may vary from the size of the

plots  advertised  in  the  scheme  and  applied  for,  and  a  marginal

increase or decrease in area upto a maximum of 20% on either side

Page No.37 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

may be found and to meet such an eventuality of any difference of

area on the spot, no unnecessary dispute may be raised and in case

of any such increase or decrease the value of plot allotted will be

increased  or  decreased  proportionately.  However,  in  case  of

increase or decrease in the area of plot allotted is more than 20%,

the allottee may refuse to accept allotment on the ground of such

variation and will be entitled to refund of his registration money and

the authority may not forfeit any part of it, which the authority can, in

case  of  refusal  to  accept  allotment  by  allottee  without  any such

reason.  Enhancement of area of plot No.27 (originally 300 sq.m.) by

105  sq.ms.  in  the  name  of  extension  of  width  amounts  to  35%

enhancement  of  original  area  of  plot  No.27,  which  is  ex  facie

arbitrary and contrary to the rules. Apparently, increase of area of a

plot  over and above the maximum limit  of  20%, as mentioned in

clause  11  will  fall  in  the  category  of  fresh  allotment  which  is

prohibited in the Rules. In any case, in the alleged conversion policy

or anywhere else, there is no provision for enhancement of area of a

plot and in any case after execution of lease deed the question of

enhancement of  area of  a plot  does not arise,  and certainly falls

within the category of fresh allotment of a plot.  The clause above

Page No.38 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

has  been  rightly  interpreted  by  the  courts  below in  holding  that

enhancement of area of plot allotted to the appellant was erroneous

and illegal.

42. The argument of learned counsel for the appellant justifying

enhancement  of  area  of  his  plot  No.27,  on  the  ground  that  its

dimensions were not suitable for construction of a house, lacks force

and is tainted with malice. Initially, when he was allotted a plot of

bigger size in Sector-51, he sought allotment of a smaller plot and

later when a smaller plot is allotted, it is stated that the small plot is

insufficient for use. Such an act on the part of the appellant clearly

shows the dishonest intention of the appellant and his intention was

to gain pecuniary advantage to himself and to cause loss to NOIDA.  

43. On behalf of the appellant Neera Yadav, it was contended that

there is nothing to prove that appellant Neera Yadav had agreed to

do  any illegal  act  and  everything  was  done  during  the  course  of

discharge of her official duty on the basis of ‘Note’ put up by the office

in  her  capacity  as  Chairman-cum-Chief  Executive  Officer.  It  was

further contended that the appellant signed in the various ‘note’ put

up before her in her official capacity and no dishonest intention could

Page No.39 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

be attributed to the appellant Neera Yadav and courts below erred in

convicting the appellant Neera Yadav for criminal conspiracy.

44. The essential ingredients of the offence of criminal conspiracy

are:  (i)  an  agreement  between  two  or  more  persons;  (ii)  the

agreement must relate to doing or causing to be done either (a) an

illegal act; or (b) an act which is not illegal in itself but is done by

illegal means.  It is, therefore, plain that meeting of minds of two or

more persons for doing or causing to be done an illegal act or an act

by illegal means is sine qua non of criminal conspiracy. It is extremely

difficult to adduce direct evidence to prove conspiracy.  Existence of

conspiracy and  its  objective  can be inferred from the  surrounding

circumstances  and  the  conduct  of  the  accused.  In  some  cases,

indulgence in  the illegal  act  or  legal  act  by illegal  means may be

inferred from the knowledge itself.  

45.  After referring to  Yash Pal Mittal v. State of Punjab, (1977) 4

SCC 540 and Ajay Aggarwal v. Union of India and Others (1993) 3

SCC 609, in State of Maharashtra and Others v. Som Nath Thapa

and Others (1996) 4 SCC 659 in para (24), it was held as under:-

“24.  The  aforesaid  decisions,  weighty  as  they  are,  lead  us  to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the

Page No.40 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

goods or services in question may be inferred from the knowledge itself.  This  apart,  the  prosecution  has  not  to  establish  that  a particular  unlawful  use  was  intended,  so  long  as  the  goods  or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary  for  the  prosecution  to  establish,  to  bring  home  the charge  of  conspiracy,  that  each  of  the  conspirators  had  the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use.”

The above judgment was quoted with approval in Ram Narain Popli

v. Central Bureau of Investigation (2003) 3 SCC 641.

46. For  convicting  the  appellants  under  Section  120-B  IPC  and

under Section 13(1)(d)(ii), there must be evidence 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  in  violation  of  the  rules  and  circular;  (ii)

conversion of “guest house” to “residential” and allotting the same to

appellant Rajiv Kumar; (iii) conversion of plot No.B-86 in Sector-51 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 alteration of  the plots

with  the  dishonest  intention  of  the  appellants  gaining  pecuniary

Page No.41 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

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.  Co-accused appellant Neera Yadav

is associated in each and every aspect of these events which clearly

bring home the charge of conspiracy of both the accused.  

47. So  far  as  the  role  of  co-accused  appellant  Neera  Yadav  is

concerned,  at  the  relevant  time  both  the  appellants  were  public

servants.  Neera Yadav played a specific role facilitating the appellant

Rajiv  Kumar  to  obtain  plot  No.27  in  Sector-14A at  less  premium.

Being CCEO of NOIDA, appellant Neera Yadav signed various notes

put up before her like Ex. Ka-34 (15.10.1994), conversion of “guest

house” to “residential” and allotment of plot No.27 in Sector-14A.  On

perusal  of  the exhibits,  it  is  clear that  appellant  Neera Yadav was

involved  in  all  the  stages  of  conversion  of  the  “guest  house”  to

“residential”, in violation of rules allotment of plot No.27 to appellant

and also allotment of additional area to the appellant Rajiv Kumar.

Often conspiracy is hatched in secrecy and for proving this offence

substantial direct evidence may not be possible to be obtained.  The

Page No.42 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

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 by flouting the

rules and the circular.   

48. 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  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  to  gain  pecuniary  advantage  to  him

(Rajiv Kumar). The concurrent findings recorded by the courts below

are  well  balanced  and  we  do  not  find  any  reason  warranting

interference.   

49. Corruption has spread its tentacles almost on all the key areas

of  the  State  and  that  it  is  an  impediment  to  the  growth  and

development  of  the  country.  After  referring  to  Yash  Pal  Mittal  v.

State of  Punjab (1977) 4 SCC 540;  Ajay Aggarwal  v. Union of

India  and  Ors.  (1993)  3  SCC  609;  State  of  Maharashtra  and

Others.  v. Som Nath Thapa and Others (1996)  4 SCC 659 and

Ram Narain Popli v. Central Bureau of Investigation (2003) 3 SCC

Page No.43 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

641, in Criminal Appeal No.253 of 2017 (Neera Yadav v. State of

U.P. and Another) in paragraphs (53) to (57), we have observed that

there has to be unrelenting stern action by all concerned in particular

the Government and that there should be public awareness against

corruption.  

50. So  far  as  the  sentence  is  concerned,  as  noticed  earlier,  for

conviction under Section 120-B IPC, the appellants were sentenced

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(1)(d)  of  P.C.  Act,  the  appellants  were  sentenced  to

undergo imprisonment for three years and a fine of Rs.50,000/- on

each of  the appellants.  Learned Senior  Counsel  appearing for  the

appellant  Rajiv  Kumar  submitted  that  the  appellant  had  been  a

sincere officer and has an outstanding ACR with unblemished service

record that he had unnecessarily been targeted and the sentence of

three years of imprisonment imposed on the appellant is harsh.  

51. Learned Senior  Counsel Mr. Vishwanathan appearing for  the

appellant Neera Yadav has submitted that the officer appellant Neera

Yadav had been the top level officer in the State of Uttar Pradesh and

worked  as  Chief  Secretary  of  the  State  and  in  the  disciplinary

Page No.44 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

proceedings initiated against her, she had been exonerated from the

charges and while being so the sentence of imprisonment for three

years for the alleged conspiracy is harsh.  Learned senior counsel

Mr. Vishwanathan further submitted that insofar as the plot allotted to

appellant  Neera  Yadav,  the  same  has  been  surrendered  in

December,  2013  and  the  surrender  deed  was  also  executed  on

20.12.2013.

52. Occurrence was of the year 1994, the appellants Rajiv Kumar

and  Neera  Yadav  are  undergoing  sentence  from 18.04.2016  and

14.03.2016 respectively.  With the conviction of the appellants, their

job and getting retiral benefits is also in jeopardy.  Further, wife of the

appellant  Rajiv  Kumar  has  filed  an  affidavit  stating  that  on

06.09.1999,  the  allotment  was  cancelled  by  NOIDA and  that  the

amount  deposited  against  the  allotment  of  the  plot  has  not  been

refunded so far.  It is further averred that the appellant and his family

are not interested in getting the aforesaid plot.  In the affidavit, it is

further  averred that  the appellant  Rajiv  Kumar  has unconditionally

surrendered  the  said  plot.   In  the  facts  and  circumstances  of  the

present case and considering that the occurrence was of the year

1994  about  twenty  three  years  ago  and  that  the  appellant  Rajiv

Page No.45 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

Kumar 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 Rajiv

Kumar is reduced to two years and necessarily that of Neera Yadav is

also to be reduced.

53. In the result, the conviction of the appellants Rajiv Kumar and

Neera Yadav is confirmed.  The sentence of imprisonment of three

years imposed on the appellants is reduced to two years and the

appeals are partly allowed with the only modification in sentence.   

..……………………….J.         [KURIAN JOSEPH]

                            .………………………..J.      [R. BANUMATHI]

New Delhi; August 02, 2017

Page No.46 of 47

CA NO.251 OF 2017 WITH CA NO.252 OF 2017

ITEM NO.1502               COURT NO.6               SECTION II

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

CRIMINAL APPEAL  NO(S).  251/2017

RAJIV KUMAR                                        APPELLANT(S)

                               VERSUS

STATE OF UTTAR PRADESH & ANR.                      RESPONDENT(S)

WITH CRL. A. NO. 252/2017 (II)

Date : 02-08-2017 These appeals were called on for pronouncement of judgment.

For Appellant(s) Ms. Niharika Ahluwalia,Adv. Mr. Abhishek Atrey, AOR

                Mr. P.V. Dinesh, AOR                     For Respondent(s) Mr. Abhisth Kumar, AOR

                 Mr. Mukesh Kumar Maroria, AOR

Hon'ble  Mrs.  Justice  R.  Banumathi  pronounced

the  judgment  of  the  Bench  comprising  Hon'ble  Mr.

Justice Kurian Joseph and Her Lordship.

The appeals are partly allowed in terms of the signed judgment.

Pending  application(s),  if  any,  shall  stand disposed of.  

(NARENDRA PRASAD)                               (RENU DIWAN) COURT MASTER (SH)                              ASST. REGISTRAR

(Signed “Reportable” Judgment is placed on the file)

Page No.47 of 47