NOIDA ENTREPRENEURS ASSOCIATIONversusNOIDA & ORS.

                      [2011) 8 S.C.R. 25


         NOIDA ENTREPRENEURS ASSOCIATION                       A
                              v.
                         NOIDA & ORS.
            (Writ Petition (Civil) No. 150 of 1997)
                        MAY 9, 2011
                                                               B
       [G.S. SINGHVI AND DR. B.S. CHAUHAN, JJ.]

       Prevention of Corruption Act, 1988 - s.13 - Criminal
  misconduct by public servant - Land scam - Respondent
  no.4 was CEO, New Okhla Industrial Development Authority C
  (NO/DA) in 1993-1994 - A/legation that during this period, he
  committed three acts of misconduct - 1) that he allotted
  contracts worth Rs. 10 crores to different contractors on
  selection basis without inviting tenders; 2) that he caused
  financial loss to NO/DA by not paying conversion charges with D
  respect to the plot allotted to him and 3) that at his instance
  a 13 hectwe City Park situated in NO/DA was destroyed and
  by changing the land use, a new residential Sector in violation
  of the Master Plan was carved out comprising of 200 plots -
  Held: The a/legations being of a very serious nature and as E
  alleged, the respondent no.4 having passed orders in
  colourable exercise of power favouring himself and certain
  contractors, require investigation - Central Bureau of
. Investigation (CBI) directed to have preliminary enquiry and
  in case the allegations are found having some substance F
  warranting further proceeding with criminal prosecution, it may
  proceed in accordance with law - U. P. Industrial Area
  Development Act, 1976 - ss.6(2)(b) & 6(2)(c), 8, 9, 12, 14,
  17, 18, 19 - U. P. Urban Planning and Development Act, 1973
  - ss. 30, 32, 40 to 47, 49, 50, 51, 53 and 58 - New Okhla G
  Industrial Development Area (Preparation and Finalisation of
  Plan) Regulations 1991.

     Code of Criminal Procedure, 1973 - ss.468-471 and 473
 - Delay in launching criminal prosecution - Held: Cannot
                            25                                 H
    26        SUPREME COURT REPORTS               [2011] 8 S.C.R.


A   itself be a ground for dismissing the complaint, but may be a
    circumstance to be taken into consideration in arriving at a
    final decision - More so, the issue of limitation has to be
    examined in the light of the gravity of the charge.

B        Service Law - Disciplinary proceedings against retired
    /AS officer - Maintainability of - Held: On facts, the
    disciplinary proceedings were time barred - All India Services
    (Death-cum-Retirement Benefits) Rules, 1958·- Rule 6(b).

         Rule of Law - Held: The Rule of Law is the foundation of
C a democratic society - It prohibits arbitrary action and
    commands the authority concerned to act in accordance with
    law.

         Public Authority - Obligation of the State or its
o   instrumentality - Public Trust Doctrine -Held: Action of the
    State or its instrumentality must be in conformity with some
    principle which meets the test of reason and relevance - In
    essence, the action/order of the State or State· instrumentality
    would stand vitiated if it lacks bona tides, as it would only be
E   a case of co/ourable exercise of power - The 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 - An Authority is under a legal obligation to exercise
    the power rea$onab/y and in good faith to effectuate the
F   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 -
    Doctrines/Principles - Principle of legitimate expectation -
    Constitution of India, 1950 - Articles 14 and 21.

G        Doctrines/Principles - Principle of "quando aliquid
    prohibetur, prohibetur at omne per quod devenitur ad il/ud" -
    Meaning of - Held: Whatever is prohibited by law to be done,
    cannot legally be effected by an indirect and circuitous
    contrivance.
H
•   NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA & 27
                      ORS.
         Administrative Law - Act done in undue haste - Effect A
    of - Held: In case an authority proceeds in undue haste, the
    Court may draw an adverse inference from such conduct.

         Respondent no.4 was the CEO, New Okhla Industrial
    Development Authority (NOIDA) in 1993-94. It was alleged 8
    that during this period he committed three acts of
    misconduct - 1) that he allotted contracts worth Rs.10
    crores to different contractors on selection basis without
    inviting tenders; 2) that he caused financial loss to NOIDA
    by not paying conversion charges with respect to the C
    plot allotted to him and 3) that at his instance, a 13
    hectare City Park situated in NOIDA was destroyed and·
    by changing the land use, a new residential Sector in
    violation of the Master Plan was carved out comprising
    of 200 plots.
                                                                  D
         In the instant writ petition, this Court was required to
    examine as to 1) whether any action was warranted
    against respondent no.4 and if so, whether it was
    permissible to initiate disciplinary proceedings against
    him although in the meanwhile he had reached the age E
    of superannuation and had retired, and as to 2) whether
    the misconduct was of such a grave nature that it
    warranted criminal prosecution and if so, what should be
    the agency which may be entrusted with the investigation
    and prosecution.                                              F

        Disposing of the writ petitions, the Court

         HELD:1 ~ The services of respondent no.4 stood
    governed by All India Services (Death-cum-Retirement
    Benefits) Rules, 1958. Rule 6(b), thereof, provides that in G
    case the delinquent had already retired, the proceedings
    shall not be instituted against him without the sanction
    of the Central Government and shall be in respect of an
    event which took place not more than four years before
    the institution of such proceedings. Thus, it is evident that H
    28       SUPREME COURT REPORTS             (2011] 8 S.C.R.     •
A   law does not permit holding disciplinary proceedings
    against respondent no.4 at this belated stage. [Para 15)
    [42-G-H;]

      B.J. She/at v. State of Gujarat & Ors. AIR 1978 SC 1109:
8 1978 (3) SCR 553; State Bank of India v. A.N. Gupta & Ors.
  (1997) a sec so: 1997 (4) Suppl. SCR 383; State of U.P. &
  Ors. v. Harihar Bho/enath (2006) 13 SCC 460: 2006 (8)
  Suppl. SCR 241; UCO Bank & Anr. v. Rajinder Lal Capoor
  AIR 2007 SC 2129: 2007 (7) SCR 543; Ramesh Chandra
C Sharma v. Punjab National Bank & Anr. (2007) 9 SCC 15:
  2007 (7) SCR 585 and UCO Bank & Anr. v. Rajinder Lal
  Capoor AIR 2008 SC 1831: 2008 (5) SCR 775 - relied on.

         2. So far as the initiation of criminal proceedings is
    concerned it is governed by the provisions of Code of
D CrifJltrfal Procedure, 1973. Section 468 thereof puts an
    embargo on the court to take cognizance of an offence
    after expiry of limitation provided therein. However, there
 · is no limitation prescribed for an offence punishable with
    more than 3 years imprisonment. Section 469 declares as
E to when the period of limitation would start. Sections 470-
   .471 provide for exclusion of period of limitation in certain
 · cases. Section 473 enables the court to condone the
    delay provided the court is satisfied with the explanation
    furnished by the prosecution or where the interest of
F justice demands extension of the period of limitation. It
    is evident that question of delay in launching criminal
    prosecution may be a circumstance to be taken into
    consideration in arriving at a final decision, but it cannot
    itself be a ground for dismissing the complaint. More so,
G the issue of limitation has to be examined in the light of
    the gravity of the charge. [Paras 16, 18) [43-C-E; 44-B-C]

       Japani Sahoo v. Chandra Sekhar Mohanty AIR 2007 SC
  2762: 2007 (8) SCR 582; Sajjan Kumar v. Central Bureau
  of Investigation (2010) 9 SCC 368: 2010 (11) SCR 669 -
H relied on.              ·
•    NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA & 29
                       ORS.

            3.1. It is evident from the record that one contr;:ictor, A
       Mis Anil Kumar & Co., had been allotted originally the
      ·work on the basis of tender for Rs. 2.75 crores in Sector
       'Gamma' in Greater NOIDA, in connection with the
       construction of water drains. However, they had· been
       awarded additional work· by respondent no. 4, worth B
       Rs.3.75 crores on a "deviation basis". In fact, awarding
       such work cannot be termed as an 'addition' or 'additional
       work' because the work is worth Rs.1 crore more than
       the amount of original contract. In such a fact-situation,
       even if there had been no financial loss to the Greater c
       NOIDA, indisputably, the additional work for such a huge
       amount had been awarded without following the
       procedure prescribed in law. More so, there is nothing on
       record to show as to whether the said contractor Mis Anil ·
    ·. Kumar & Co. was eligible to carry out the contract worth 0
       Rs.6.50 crores. Awarding the contract ·under the garb of
       so-called· extension, amounts to doing something
       indirectly which may not be permissible to do directly.
       Admittedly, such a course of action is not permissible in
       law. It is a settled proposition of law that whatever is E
       prohibited by laW tO be done, Cannot legally be effected I
       by an indirect and circuitous contrivance on the principle
       of "quando aliquid prohibetur, prohibetur at omne per quod
       devenitut ad illud", which means" "whenever a thing is
       prohibited, it is prohibited whether done directly or
       indirectly". [Paras 21, 22] (47-G-H; 48-A-E]                   F

         3.2. The second work had been allotted to M/s Techno
     Construction Co. worth Rs.1 crore without inviting fresh
     tenders etc., on the ground that earlier a contract for
     execution of similar work i.e. construction of road had G
     been awarded to it. In view of the fact that there was no
     urgency, such a contract should not have been awarded.
     Undoubtedly, the respondent no.4 is guilty of proceeding
     in haste and that amounts to arbitrariness. In case an
     authority proceeds in undue haste, the Court may draw H
    30        SUPREME COURT REPORTS             (2011) 8 S.C.R.
                                                                   •
A   an adverse inference from such conduct. It further
    creates a doubt that if there was no sufficient reason of
    urgency, what was the occasion for the respondent no.4
    to proceed in such haste and why fresh tenders had not
    been invited. [Paras 24, 27] [49-A-B; E-F]
B
         Swantraj & Ors. v. State of Maharashtra AIR 1974 SC
    517: 1974 (3) SCR 287; Commissioner of Central Excise,
    Pondicherry v. ACER India Ltd. (2004) 8 SCC 173: 2004 (4)
    Suppl. SCR 676; Sant Lal Gupta & Ors. v. Modern Co-
    operative Group Housing Society Ltd. & Ors. JT (2010) 11 SC
C 273: 2010 (13) SCR 621; Jagir Singh v. Ranbir Singh & Anr.
    AIR 1979 SC 381 ~ 1979 (2) SCR 282; Bahadursinh
    Lakhubhai Gohi/ v. Jagdishbhai M. Kamalia & Ors., (2004) 2
    SCC 65: 2003 (6) Suppl. SCR 1023; Zenit Mataplast Private
  . Limited v. State of Maharashtra & Ors. (2009) 10. SCC 388:
D 2009 (14) SCR 403 - relied on.
        Dr. S.P. Kapoor v. State of Himachal Pradesh & Ors. AIR
    1981 SC 2181: 1982 (1) SCR 1043 - referred to.

E         Fox v. Bishop of Chester, (1824) 2 B &C 635 - referred
    to.

       4.1. It is evident from the record that the respondent
  no.4 had originally been allotted plot no.118, Sector-35
  measuring 360 sq. meters which was converted to plot
F no.G-25, Sector-27 measuring 392 sq. meters. However,
  as the respondent no.4 did not deposit the required
  charges the said order of conversion stood withdrawn.
  By subsequent conversion, respondent no.4 got plot
  no.A-15 in Sector-44. Thus, two conversions had been
G made on different dates. However, he paid the transfer
  charges only once to the tune of Rs.1.80 lacs. It is alleged
  that by first conversion, the respondent no.4 not only got
  the plot in a better location, but also a plot of bigger size.
  Second allotment was further, as alleged, in a far better
H geographical position. [Para 28] [49-G-H; 50-A]
•    NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA & 31
                       ORS.
             4.2. There is no provision under the U.P. Industrial A
    . Area Development Act, 1976 [under which Act NOIDA had
     · been constituted] or New Okhla Industrial Development
       Area (Preparation and Finalisation of Plan) Regulations
       1991 for conversion. Uis rather governed by Office Order
       No.4070/NOIDA/DCE0/92 dated 3.7.1992 which basically· s
       provides that conversion was permissible only in case of
       residential plots. The aforesaid Office Order dated
       3. 7.1992 stood modified vi de order dated 27 .9.1993 (when
       the respondent no.4 was the CEO, NOIDA) to ~he effect
       that a large number of vacant plots were available in old c
       developed sectors and the same could be included in the
       plots availability list. The list of available plots had been
    . expanded during the period when the respondent no.4
      was CEO, NOIDA and unallotted plots of various sectors
       including Sector 27 were also included in that list in which
                                                                     0
      the.respondent no.4 himself g<>t the first conversion. It is
      a matter of investigation as to whether the Order dated
      3.7.1992 was modified vide Order dated 27.9.1993 with
       ulterior purpose. [Paras 29, 30, 31] [50-B-C-H; 51-A-B]

          5.1. Section 12 of the 19.76 Act makes the provisions       E
      of Chapter VII and Sections ·30, 32, 40 to 47, 49, 50, 51, 53
      and 58 of the U.P. Urban Planning and Development Act,
      1973 mutatis mutandis applicable to the 1976 Act. Section
      17 of the 1976 Act declares that the 1976 Act would have
      an over-riding effect over the provisions of the 1973 Act.      F
      Section 18 confers the power on the State Government
    . to make rules by issuing a Notification for carrying out
      the purposes of the 1976 Act. Section 19 of the 1976 Act
      provides for the framing of regulations by the NOIDA in
      respect of holding of meetings; defining the powers and         G
      duties of the CEO; and management of properties of the
      Authority etc. In view thereof, the New Okhla Industrial
      Development Area (Preparation and Finalisation ·of Plan)
      Regulations 1991 had been framed with the prior
      approval of the State Government as required under              H
    32       SUPREME COURT REPORTS              (2011] 8 S.C.R.     •
A   Section 19 of the 1976 Act and, therefore, have statutory
    force. By virtue of the provisions of sub-section 2(b) of
    Section 6 of the 1976 Act, it is a statutory requirement that
    in the plan to be prepared by the NOIDA, it must
    necessarily provide as to for what particular purpose any
                                                                    I
B   area/site is to be used, namely, industrial, commercial or
    residential. The Authority is competent under sub-section
    2(c) of Section 6, to regulate the construction etc. having
    regard to the nature for which the site has been
    earmarked. Section 8 of the 1976 Act restrains the use of
c   any site for the purpose other than for which it is
    earmarked in the Master Plan. Section 9 prohibits the use
    of any area or erection of any building in contravention
    of the 1991 Regulations. Section 14 of the 1976 Act
    clearly provides for cancellation of allotment and
0   resumption/re-entry, where the allotment had been made
    in contravention of the rules and regulations. In case the
    Authority wants to change the user of the land, condition
    precedent remains to amend the Master Plan. [Para 32]
    [51-C-H; 52-A-B]

E      5.2. There is nothing on record to show that any
  amendment had ever been made either in the Master Plan
  or in the Regulations 1991 before the change of user of
  land, when a 13 hectare City Park situated near Sectors
  24, 33 and 35 was abolished and a new residential Sector
F 32 was carved out comprising 200 plots. Even if the said
  change made by respondent no.4 stood nullified,
  subsequently by respondent no.7, it does not exonerate
  him from committing an illegality. It is a matter of
  investigation as to what was the motive for which such
G a change had been made by respondent no.4,
  unauthorisedly and illegally. Admittedly he was not
  competent to do so without seeking the amendments as
  mentioned hereinabove. [Para 33] [52-C-D]

         5.3. The State or the public authority which holds the
H
•     NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA
                      & ORS.
                                                                 33


      property for the public or which has been assigned the          A
      duty of grant of largesse etc., acts as a trustee and,
      therefore, has to act fairly and reasonably. Every holder
      of a public office by virtue of which he acts on behalf of
      the State or public body is ultimately accountable to the
      people in whom the sovereignty vests. As such, all              B
      powers so vested in him are meant to be exercised for
      public good and promoting the public interest. Every
      holder of a public office is a trustee. State actions are
      required to be non-arbitrary and justified on the
      touchstone of Article 14 of the Constitution. Action of the     c
      State or its instrumentality must be in conformity with
      some principle which meets the test of reason and
      relevance. Functioning of a "democratic form of
      Government demands equality and absence of
      arbitrariness and discrimination". The rule of law prohibits    0
      arbitrary action and commands the authority ·concerned
    · to act in accordance with law. Every action of the State
      or its instrumentalities should neither be suggestive of
      discrimination, nor even apparently give an impression
      of bias, favouritism and nepotism. If a decision is taken
      without any principle or without any rule, it is                E
      unpredictable and such a decision is antithesis to the
      decision taken in accordance with the rule of law. The
      Public Trust Doctrine is a part of the law of the land. The
      doctrine has grown from Article 21 of the Constitution. In
      essence, the action/order of the State or State                 F
      instrumentality would stand vitiated if it lacks bona fides,
      as it would only be a case of colourable exercise of
      power. The Rule of Law is the foundation of a democratic
      society. [Para 34] [52-F-H; 53-A-C]
                                                                      G
        5.4. Power vested by the State in a Public Authority
                             .   .                           I

    should be viewed as a trust coupled with duty to be
    exercised in larger public and social interest Power is to
    be exercised strictly adheririg to the statutory provisions
    and fact-situation of a case. "Public Authorities cannot          H
    34      SUPREME COURT REPORTS              [2011] 8 S.C.R.     •
A   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
B   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. [Para 35] [53-E-G]
       Mis. Erusian Equipment & Chemicals Ltd. v. State of
  West Bengal & Anr. AIR 1975 SC 266: 1975 (2) SCR 674;
C Ramana Dayaram Shetty v. The International Airport
  Authority of India & Ors. AIR 1979 SC 1628: 1979 (3) SCR
  1014; Haji T.M. Hassan Rawther v. Kera/a Financial
  Corporation AIR 1988 SC 157: 1988 (1) SCR 1079; Kumari
  Shrilekha Vidyarlhi etc. etc. v. State of U.P. & Ors. AIR 1991
D SC 537: 1990 (1) Suppl. SCR625; M./. Builders Pvt. Ltd. v.
  Radhey Shyam Sahu & Ors. AIR 1999 SC 2468: 1999 (3)
  SCR 1066; Commissioner of Police, Bombay v. Gordhandas
  Bhanji AIR 1952 SC 16: 1952 SCR 135; Sirsi Municipality
  v. Cecei/a Korn Francis Tellis, AIR 1973 SC 855: 1973 (3)
E SCR 348; The State of Punjab & Anr. v. Gurdial Singh & Ors.
  AIR 1980 SC 319: 1980 (1) SCR 1071; The Collector (Distt.
  Magistrate) Allahabad & Anr. v. Raja Ram Jaiswal AIR 1985
  SC 1622: 1985 (3) SCR 995; Delhi Administration (Now NCT
  of Delhi) v. Manohar Lal (2002) 7 SCC 222: 2002 (2) Suppl.
F SCR 1 and N.D. Jaya/ & Anr. v. Union of India & Ors. AIR
  2004 SC 867: 2003 (3) Suppl. SCR 152 - relied on.
      6. In view of the above, this Court is of the
  considered opinion that these allegations being of a very
  serious nature and as alleged, the respondent no.4 had
G passed orders in colourable exercise of power favouring
  himself and certain contractors, require investigation.
  The CBI is directed to have preliminary enquiry and in
  case the allegations are found having some substance
  warranting further proceeding with criminal prosecution,
H may proceed in accordance with law. [Para 36] [54-B-C]
•   NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA & 35
                      ORS.
                     Case ·Law Reference:                 ·A
     1978 (3) SCR 553          relied on      Para15
     1997 (4) Suppl. SCR 383   relied on      Para 15
     2006 (8) Suppl. SCR 241   relied on      Para 15
                                                           B
     2007 (7) SCR 543          relied on     .Para 15
     2007 (7) SCR 585          relied on      Para 15
     2008 (5) SCR 775          relied on      Para 15
                                                          c
     2007 (8) SCR 582          relied on      Para 16
     2010 (11) SCR 669         relied on      Para 17
     1974 (3) SCR 287          relied on      Para 22
      )
     2004 (4) Suppl. SCR 676   relied on      Para 22     D

     2010 (13) SCR 621 ·       relied on      Para 22
     1979 (2) SCR 282          relied on      Para 23
     (1824) 2 B & C 635        referred to   · Pare1 23   E
     2003 (6) Suppl. SCR 1023 relied on       Para ~5
     1982 (1) SCR 1043         referred to    Para 25
     2009 (14) SCR 403         relied on      Para 26
                                                           F
     1975 (2) SCR 674          relied on      Para 34
     1979 (3) SCR 1014         relied on      Para 34
     1988 (1) SCR 1079         relied on      Para 34
     1990 (1) Suppl. SCR 625   relied on ·                G
                                              Para 34
     1999 (3) SCR 1066         relied on      Para 34
     1952 SCR 135              relied on      Para 35
     1973 (3) SCR 348          relied on      Para 35     H
    36       SUPREME COURT REPORTS                [2011] 8 S.C.R.


A     1980 (1) SCR 1071              relied on           Para 35
      1985 (3) SCR 995               relied on           Para 35
      2002 (2) Suppl. SCR 1          relied on           Para 35
      2003 (3) Suppl. SCR 152        relied on           Para 35
B
        CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
    Constitution of India

         Writ Petition (Civil) No. 150 of 1997.
c                                WITH

    Writ Petition (Civil) No. 529 of 1999.

        P.P. Malhotra, ASG, Rajeev Dhawan, (A.C), P.S.
D Narasimhan, K.T.S. Tulsi, Rakesh Dwivedi, Nikhil Nayyar (A.C.),
  Dayan Krishnan (A.C.) Rakesh U. Upadhyay, Abhijeet Kaketi,
  E.C. Vidya Sagar, Sangeeta Kumar, Nikhil Sharma, T.A. Khan,
  M. Khairati, A.K. Sharma, Ravi Prakash Malhotra, Vibhu Tiwari,
  Deepti R. Mehrotra, Ravinder Singh, M.S. Yadav, Jogy Scaria
E for the appearing parties.

         The Judgment of the Court was delivered by
       DR. B.S. CHAUHAN, J. 1. The Legislature of Uttar
  Pradesh enacted the U.P. Industrial Area Development Act,
F 1976, (hereinafter referred to as 'Act 1976') for the purpose of
  proper planning and development of industrial and residential
  units and to acquire and develop the land for the same. The
  New Okhla Industrial Development Authority (hereinafter
  referred to as the 'Authority'), has been constituted under the
  said Act, 1976. The object of the Act had been that genuine
G and deserving entrepreneurs may be provided industrial and
  residential plots and other necessary amenities and facilities.
  Thus, in order to carry out the aforesaid object, a new township
  came into existence. All the activities in the Authority had to be
  regulated in strict adherence to all the statutory provisions
H
 NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA                   37
         & ORS. [DR. B.S. CHAUHAN, J.]
contained in relevant Acts, Rules and Regulations framed· for A
this purpose. However, from the very inception of the township,
there has always been a public hue and cry that officials
responsible for managing the Authority are guilty of
manipulation, nepotism and corruption. Wild and serious
allegations of a very high magnitude had been leveled against B
some of the officials carrying out the responsibilities of
implementing the Act and other statutory provisions.
      2. The instant writ petition was originally filed seeking a
large number of reliefs including the allotment of industrial and
residential plots to the members of the petitioner-Association C
and a large number of officials who had acted as Chief
Executive Officers (hereinafter referred to as 'CEO') of the
Authority had been impleaded therein as responderit;s.
However, considering the fact that relief for personal benefits
of the members had been sought and alternative means for D
seeking the redressal of grievances in that respect were
available, the petitioner made a request to the Court that its
petition may be treated as a public interest litigation (in short
'PIL') for a limited purpose. This Court vide order dated
21.4.1997 treated the matter as PIL and issued show cause E
notice only to the extent of the following reliefs:
     "(1) Issue writ of mandamus and/or any appropriate writ
     and direct the CBI to investigate into all the land allotments
     and conversion of lands made by the NOIDA during the F
     past 10 years.
     (2) Issue an appropriate writ and directions and frame
     guidelines for allotment of lands by the NOIDA."
      3. Qr. Rajeev Dhavan, learned senior counsel who had
 been appearing for the. petitioner in the matter was requested G
 by this Court vide order dated 29.8.1997 to act as Amicus
.Curiae.                              ·
     The matter was heard several times by this Court and after
scrutinising of a very large number of documents, the Court was   H
     38       SUPREME COURT REPORTS                  [2011) 8 S.C.R.


A    of the opinion that the allegations made in the petition required
     investigation. Thus, vide order dated 15.12.1997, this Court
     issued notice to the State of U.P. to indicate its consent to an
     investigation being made by the Central Bureau of Investigation
     (hereinafter referred to as CBI), in view of the Very serious
B    nature of the allegations. The State of U.P. had also received
     similar complaints and thus, it constituted a Commission of
     Inquiry headed by Justice Murtaza Hussain, a former Judge of
     Allahabad High Court to enquire about the same. The
     Commission completed its task and submitted its report. The
c    said report was also placed before this Court in the first week
     of January 1998. As the report indicated, prima facie view of
     the Commission, that Mrs. Neera Yadav, IAS, respondent no.7
     had committed serious irregularities and illegalities, a copy of
     the report of the Commission was also directed to be given to
     her and this Court vide order dated 6.1.1998 asked the State
D
     of U.P. as to whether this report had been accepted by the
     State Government and, if so, what was the likely follow up
     measure pursuant thereto. The State Government submitted a
     reply in response to the said show cause pointing out that the
     State Government proposed to initiate disciplinary proceedings
·E   against her.
          4. In view of the material on record, this Court expressed
     tentative opinion that it would be more appropriate that the
     matter is investigated by the CBI and if such investigation
F    discloses the commission of criminal offence(s), the persons
     found responsible should be prosecuted in a criminal court.
     However, considering the fact that allegations of a very high
     magnitude and gravity had been made against a large number
     of officials, this Court wanted the CBI to investigate first the
G    cases against Mrs. Neera Yadav, IAS, respondent no.7, as is
     evident from the proceedings dated 20.1.1998, which reads as
     under:
          "For the time being, we are directing the CBI to conduct
          an investigation in respect of the irregularities in the matter
H         of allotments and conversions of the plots ......... ..
•    NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA
            & ORS. [DR. B.S. CHAUHAN, J.)
                                                                 . 39


               Shri G.L. Sanghi, the learned senior counsel             A
        appearing for respondent no. 7 states that though the
        respondent no.7 does not admit that she has committed
        any irregularity in the matter of allotment or conversion of
        plots in NOIDA but according to respondent no. 7 there are
        other persons who might have committed such iffegularity        B
        and she seeks leave to file an affidavit in this regard. She
        may file an affidavit giving particulars of such iffegu/ar
        allotments and in the event of such affidavit being filed
        further directions in that regard will be given."
        (Emphasis added)                                                c
         This Court by the same order also issued certain directions
                                                                    •
    with regard to irregular allotments and conversion of plots which
    had been found to have been made in the report of Justice
    Murtaza 'Hussain Commission.
                                                                        D
         5. In view of the above referred to order, Mrs. Neera
    Yadav, IAS, respondent no.7 filed her affidavit with regard to
    irregularities committed by other officers, namely, Shri P.K.
    Mishra, respondent no.5; Shri Bijendra Sahay, respondent no.8;
    Shri Ravi Mathur, respondent no.4; and one Shri S.C. Tripathi.      E
    The affidavit filed by Mrs. Neera Yadav, IAS, respondent no.7
    was considered by this Court on 24.2.1998 and took note of
    the fact that in respect of the same/similar allegations made
    against Shri Bijendra Sahay, respondent no.8, the State
    Government had already accepted his explanation. So far as          F
    the allegations made against Shri Ravi Mathur, IAS, and Shri
    P.K. Mishra, respondent nos. 4 and 5 respectively and one Shri
    S.C. Tripathi are concerned, the State Government vide order
    dated 18.7.1997 had referred the same to the Chairman of the
    Board of Revenue for inquiry and the same was pending.
                                                                        G
         6. In the meanwhile, Shri Mahinder Singh Yadav, husband
    of Mrs. Neera Yadav, IAS, respondent no.7 and one Shri Bali
    Ram, Ex. Member of Parliament also filed complaints against
    the aforesaid officials in 1996-1997, which were also referred
    to the Chairman, Board of Revenue for inquiry.                      H


                                                     •
    40       SUPREME COURT REPORTS                [2011] 8 S.C.R.      •
A      7. One Shri Naresh Pratap Singh also filed a complaint
  against some officers including Shri Ravi Mathur, IAS,
  respondent no.4 on 27.6.1997 before the Lok-Ayukta of U.P.
  However, the Lok-Ayukta vide letter dated 21.4.1998 to the
  State Government expressed his inability to conduct an enquiry
B against Shri Ravi Mathur, IAS, respondent no.4 and suggested
  that the matter be referred to the CBI.

         8. This Court vide order dated 11.1.2005 constituted a
  Commission headed by Justice K.T. Thomas to examine a
C large number of issues, including as to why disciplinary
  proceedings had been dropped by the State of U.P. against
  several officials who had been impleaded as respondents in
  tl1_is case. The Commission submitted the report dated
  24.12.2005, and after considering the same, this Court vide
  order dated 8.12.2008 closed the proceedings agai~st Shri
D Bijendra Sahay, respondent no.8. One Shri S.C. Tripathi also
  stood exonerated in earlier proceedings.

       In view of the order passed by this Court, the CBI
  conducted the enquiry against Mrs. Neera Yadav, IAS,
E respondent no. 7 and filed a charge sheet against her. She was
  put on trial and proceeded with in accordance with law.

        9. Thus, in view of the aforesaid factual matrix, this Court
  has to examine as to whether any action is warranted against
F Shri Ravi Mathur, IAS, respondent no.4 and if so, whether it is
  permissible to initiate the disciplinary proceedings against him
  as he reached the age of superannuation and has retired and
  the alleged misconduct had been committed by him in 1993-
  94, and as to whether the misconduct is of such a grave nature
  that it warrants the criminal prosecution and if so, what should
G be the agency which may be entrusted with the investigation
  and prosecution.

      10. Shri K.T.S. Tulsi, learned senior counsel appearing for
  respondent no. 7 submitted that on similar allegations, this Court
H had directed CBI to initiate criminal proceedings against his
•   NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA & 41
             ORS. [DR. B.S. CHAUHAN, J.] .

    client and criminal prosecution has been launched and ended          A
    in logicalconclusion, thus, there could be no justification not to
    initiate the similar proceedings against Shri Ravi Mathur, IAS,
    respondent no.4. Not initiating the proceedings on the similar
    or more grave charges would amount to treating the said
    respondent no.7 with hostile discrimination. The disciplinary        B
    proceedings cannot be initiated against him in view of delay
    and latches as the statutory rules applicable do not permit such
    a course at such a belated stage. The criminal prosecution can
    easily be launched. The matter requires investigation as to
    whether the said respondent no.4 had committed an offence            c
    under the provisions of Prevention of Corruption Act, 1988
    (hereinafter called the Act 1988).

           11. Dr. Rajeev ·Dhavan, learned senior counsel/Amicus
    Curiae would submit that the gravity of allegations made
    against the said respondent no.4 is of such a high magnitude         D
    that it warrants the same treatment as given to Mrs. Neera
    Yadav, IAS, respondent no.7. Dr. Dhavan has taken us through
    all the proceedings including the reports of the Chairman, Board
    of Revenue and K.T. Thomas Commission and submitted that
    it is a fit case directing the CBI to conduct enquiry against the    E
    respondent no.4. However, Dr. Rajeev Dhavan has raised
    serious objection in respect of intervention of the respondent
    no. 7 and opportunity of hearing accorded to Shri K.T.S. Tulsi,
    learned senior counsel on her behalf that in a case of this
    nature the respondent no. 7 had no locus standi and right to         F
    raise any grievance whatsoever.

          12. Shri Rakesh Dwivedi, learned senior counsel
    appearing for respondent no.4, has vehemently opposed the
    initiation of disciplinary proceedings or criminal prosecution on    G
    the ground that the Authority did not suffer any financial loss.
    There is nothing on record to show that the said respondent
    indulged in corruption, thus, the provisions of the Act 1988 were
    attracted. The said fE;}Spondent had acted in good faith. The
    disciplinary proceedings cannot be initiated, being time barred.     H
    42       SUPREME COURT REPORTS                 [2011) 8 S.C.R.      •
A   All the allegations had been made against the said respondent
    no.4 at the behest of respondent no.7, thus, suffers from mala
    fide and bias. The said respondent had paid the transfer
    charges only once to the tune of Rs.1.80 lacs. The second
    conversion had subsequently been cancelled by the
8   respondent no. 7 herself. Due to pendency of this case, the said
    respondent could not get the physical possession of any of the
    plots. The change of user of the land in Sector 32 was made
    in good faith. More so, such a change was cancelled and the
    green area was restored by the respondent no. 7 herself. The
c   contract given by the respondent no.4 to certain contractors had
    been at the rate on which they had been working earlier. Thus,
    the Authority did not suffer any loss whatsoever.

          13. Before we proceed with the case on merits, we would
    like to make it clear that Mrs. Neera Yadav, IAS, respondent
D   no. 7, had been given an opportunity by this Court vide order
    dated 20 .1.1998 to file her affidavit disclosing the delinquency
    committed by other officers. In pursuance of the said order, she
    submitted her affidavit. Therefore, it is not possible for us at
    such a belated stage to deny her the right of hearing and ignore
E   the submissions made by her counsel, Shri K.T.S. Tulsi. (vide:
    V.S. Achuthanandan v. R. Balakrishna Pillai & Ors., (2011)
    3 sec 317).

         14. We have considered the rival submissions made by
F   learned counsel for the parties and perused the record.

         15. The services of Shri Ravi Mathur, IAS, respondent no.4
    stood governed by All India Services (Death-cum-Retirement
    Benefits) Rules, 1958. Rule 6(b), thereof, provides that in case
    the delinquent had already retired, the proceedings shall not
G   be instituted against him without the sanction of the Central
    Government and shall be in r,espect of an event which took
    place not more than four years before the institution of such
    proceedings. Thus, it is evident that law does not permit holding
    disciplinary proceedings against Shri Ravi Mathur, IAS,
H   respondent no.4 at this belated stage and this view stands
•    NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA
            & .ORS. [DR. B.S. CHAUHAN, J.]
                                                                  43


    fortified by the judgments of this Court in B.J. She/at v. State    A
    of Gujarat & Ors., AIR 1978 SC 1109; Stat~. Bank of India v.
    A.N. Gupta & Ors., (1997) 8 SCC 60; State of UP. & Ors. v.
    Harihar Bholenath, (2006) 13 SCC 460; UCO Bank & Anr. v.
    Rajinder Lal Capoor, AIR 2007 SC 2129; Ramesh Chandra
    Sharma v. Punjab National Bank & Anr., (2007) 9 SCC 15;             B
    and UCO Bank & Anr. v. Rajinder Lal Capoor, AIR 2008 SC
     1831.
         16. So far as the initiation of criminal proceedings is
    concerned it is governed by the provisions of Code of Criminal
    Procedure, 1973 (hereinafter referred to as Cr.P.C.). Section C
    468 thereof puts an embargo on the court to take cognizance
    of an offence after expiry of limitation provided therein. However,
    there is no limitation prescribed for an offence punishable with
    more than 3 years imprisonment. Section 469 declares as to
    when the period of limitation would start. Sections 470-471 D
    provide for exclusion of period of limitation in certain cases.
    Section 473 enables the court to condone the delay provided
    the court is satisfied with the explanation furnished by the
    prosecution or where the interest of justice demands extension
    of the period of limitation.                                        E
        This Court in Japani Sahoo v. Chandra Sekhar Mohanty,
    AIR 2007 SC 2762, dealt with the issue and observed as under:
         "14. The general rule of criminal justice is that a crime never
         dies. The principle is reflected in the well-known maxim F
         nullum tempus aut locus occurrit regi (lapse of time is no
         bar to Crown in proceeding against offenders) ....... It is
         settled law that a criminal offence is considered as a wrong
         against the State and the Society even though it has been
         committed against an individual. Normally, in serious
         offences, prosecution is launched by the State and a Court G
         of Law has no power to throw away prosecution solely on
         the ground of delay. Mere delay in approaching a Court of
         Law would not by itself afford a ground for dismissing the
         case though it may be a relevant circumstance in reaching
         a final verdict."                                               H
    44          SUPREME COURT REPORTS                 [2011] 8 S.C.R.
                                                                             •
A        17. The aforesaid judgment was followed by ttiis Court in
    Sajjan Kumar v. Central Bureau of Investigation, (2010) 9
    sec 368.
           18; Thus, it is evident that question of delay in launching
    criminal prosecution may be a circumstance to be taken into
8
    consideration in arriving at a final decision, but it cannot itself
    be a ground for dismissing the complaint. More so, the issue
    of limitation has to be examined in the light of th·e gravity of the
    charge.

C       19. Thus, we have to examine as to whether the said
    respondent could be tried for commission of an offence, if any,
    under the provisions of the Act, 1988.

          Section 13 thereof, reads:
D         "Criminal misconduct by a public servant.- (1) A public
          servant is said to commit the offence of criminal
          misconduct,-

          (b) ........ .
E
          (c) if he dishonestly or fraudulently misappropriates or
          otherwise converts for his own use any property entrusted
          to him or under his control as a public servant or allows
          any other person to do so; or
F         (d) if he, -

          (i) by corrupt or illegal means, obtains for himself or for any
          other person any valuable thing or pecuniary advantage;
          or
                                       /
G
          (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
H
•   NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA & 45
             ORS. [DR. B.S. CHAUHAN, J.)

         person any valuable thing or pecuniary advantage without          A
         any public interest." (Emphasis added)

          20. Shri Ravi Mathur, IAS, respondent no.4 had been the
     CEO, NOIDA from July 1993 to 9.1.1994 and the CEO, Greater
     NOIDA from 10.1.1994 to 26.1.1995. Altogether, there had              B
     been 14 allegations against him which the Chairman, Board
     of Revenue had examined. The findings recorded by the
     Chairman, Board of Revenue were also placed before Justice
     K.T. Thomas Commission. However, at the time of arguments,
    'Dr. Rajeev Dhavan, learned Amicus Curiae has submitted that           C
     there are three major allegations in respect of which this Court
     must direct the CBI enquiry. He has drawn our attention to the
     findings recorded by the Chairman, Board of Revenue on
     allegation nos. (iv), (ix) and (xiii) which are as under :

    Allegation No. (iv) :                                                  D
                Shri Ravi Mathur allotted contracts worth Rs.1 O
         crores to different contractors on selection basis without
         inviting tenders.

         Findings:                                                         E

         (i) The award of the contract to M/s. Anil Kumar & Co., was
         approved by the CEO. The argument that the usual process
         was not followed on account of urgency is not acceptable.
         (para 1.4.3.2)                                                    F
         (ii) The award of the contract to Mis. Techno Construction
         Co. was a pre-detemined decision. No satisfactory
         explanation why this company only was selected. (para
         1.4.3.3.)
                                                                           G
         (iii) The notes in the file for the award of the contract to M/
         s. Anil Kumar & Co. in Sector Gamma were tailor made
         and the urgency projected cannot be accepted. (para
         1.4.3.4)
                                                                           H
    46        SUPREME COURT REPORTS                 [2011) 8 S.C.R.       •
A        (iv) There was no urgency warranting the award of contract
         to Mr. J.K. Jain, which was approved by the CEO also.
         (para 1.4.3.5)

         (v) The proposal to award work to M/s. Fair Deal Engineers
8        was faulty and the urgency clause was not well defined. The
         note was approved by the CEO. (para 1.4.3.6)

         (vi) The argument of urgency advanced is not acceptable
         in some cases (para 1.4.4). At least in one case there was
         not even a necessity to award the work. (para 1.4.4)
c
         (vii) No cogent regions were given in the note file for
         selecting a particular contractor. Some of the notes
         appear to be tailor made. The works were got done by the
         Manager/Senior Manager through hand picked contractors
D        without inviting tenders and without following financial
         norms. (para 1.4.4.)

         Allegation No. (ix):

                Shri Ravi Mathur caused financial loss to NOIDA by
E        not paying conversion charges with respect to the plot
         allotted to him. He initially asked for conversion from Sector
         35 to Sector 27 but since he did not deposit the required
         amount the offer of conversion was withdrawn.
         Subsequently he applied for conversion from Sector 35 to
F        Sector 44.

         Findings:

         The only conversion which took place was from Sector 35
         to Sector 44 for which conversion charges were
G        deposited. It is a matter under the exclusive competence
         of the Authority and its Chief Executive as to whether it was
         to be treated as two conversions or one conversion only.
         It appears that it was a subtle and fine way to help a fellow
         officer. In any event Smt. Neera Yadav had approved the
H        second application on 26.10.1994. The file regarding the
•   NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA & 47
             ORS. [DR. B.S. CHAUHAN, J.]
         allotment and conversion of plot of Shri Ravi Mathur is not A
        ·traceable in NOIDA but that is for the Authority to take
         appropriate action. (para 1.9.5)

        Allegation No. (xiii):

             A 13 hectare City Park situated near Sectors 24, 33       B
        and 35 in NOIDA was destroyed and a new residential
        Sector 32 in violation of the Master Plan was carved out
        comprising of 200 plots.

        Findings:                                                      c
        (i) The procedure as prescribed in the 1991 Regulations
        was not followed while making the change of land use.
        (para 1.13. 7)

        (ii) The decision of land use change was based on logic D
        but the proposal should have been put up before the Board.
        The then Chief Architect Planner did not point out this legal
        requirement and failed in his primary duty in advising the
        ACEO and CCEO. (para 1.13.7)
                                                                       E
        (iii) There was no urgency for the development work in this
        sector. The development work was started and awarded
        without following the tender procedure in flagrant violation
        of established procedure for which the then Chief Project
        Engineer and the then General Manager (F) are                  F
        responsible. (para 1.13. 7)

        (iv) The Board has taken its duties casually and there was
        no serious effort to check, analyse and advise. (para
        1.13.7)
                                                                      G
         21. So far as these allegations are concerned, it is evident
    from the record that Mis Anil Kumar & Co. had been allotted
    originally the work on the basis of tender for Rs. 2.75 crores in
    Sector 'Gamma' in Greater NOIDA, in connection with the
    construction of water drains. However, they had been awarded H
    48        SUPREME COURT REPORTS
                 '
                                                     [2011) 8 S.C.R.
                                                                            •
A   additional work by Shri Ravi Mathur, IAS, respondent no. 4,
    worth Rs.3. 75 crores on a "deviation basis". In fact, awarding
    such work cannot be termed as an 'addition' or 'additional work'
    because the work is worth Rs.1 crore more than the amount of
    original contract. In such a fact-situation, even if there had been
B   no financial loss to the Greater NOIDA, indisputably, the
    additional work for such a huge amount had been awarded
    without following the procedure prescribed in law. More so,
    there is nothing on record to show as to whether the said
    contractor M/s Anil Kumar & Co. was eligible to carry out the
c   contract worth Rs.6.50 crores. Awarding the contract under the
    garb of so-called extension, amounts to doing something
    indirectly which may not be permissible to do directly.
    Admittedly, such a course of action is not permissible in law.

          22. It is a settled proposition of law that whatever is
D   prohibited by law to be done, cannot legally be affected by an
    indirect and circuitous contrivance on the principle of "quando
    aliquid prohibetur, prohibetur at omne per quod devenitur ad
    il/ud", which means" "whenever a thing is prohibited, it is
    prohibited whether done directly or indirectly". (See: Swantraj
E   & Ors. v. State of Maharashtra, AIR 1974 SC 517;
    Commissioner of Central Excise, Pondicherry v. ACER India
    Ltd., (2004) 8 SCC 173; and Sant Lal Gupta & Ors. v. Modem
    Co-operative Group Housing Society Ltd. & Ors., JT (2010)
    11 SC 273).
F
        23. In Jagir Singh v. Ranbir Singh & Anr., AIR 1979 SC
    381, this Court has observed that an authority cannot be
    permitted to evade a law by "shift or contrivance." While
    deciding the said case, the Court placed reliance on the
G   judgment in Fox v. Bishop of Chester, (1824) 2 B &C 635,
    wherein it has been observed as under:-

               "To carry out effectually the object of a statute, it must
         be construed as to defeat all attempts to do, or avoid doing
         in an indirect or circuitous manner that which it has
H        prohibited or enjoined.•
NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA & 49
         ORS. [DR. S.S. CHAUHAN, J.]

       24. The second work had been allotted to M/s Techno           A
Construction Co. worth Rs.1.00 crore without inviting fresh
tenders etc., on the ground that earlier a contract for execution
of similar work i.e. construction of road had been awarded to
it. In view of the fact that there was no urgency, such a contract
should not have been awarded. Undoubtedly, the respondent            B
no.4 is guilty of proceeding in haste and that amounts to
arbitrariness.
     25. While dealing with the issue of haste, this Court in the
case of Bahadursinh Lakhubhai Gohil v. Jagdishbhai M.
Kamalia & Ors., (2004) 2 sec 65, referred to the case of Dr.         c
S.P. Kapoor v. State of Himachal Pradesh & Ors., AIR 1981
SC 2181 and held that:
          • .....when a thing is done in a post-haste manner,
     mala fide would be presumed."                                   D
   26. In Zenit Matap/ast Private Limited v. State of
Maharashtra & Ors., (2009) 10 SCC 388, this Court held :
          "Anything done in undue haste can also be termed
     as arbitrary and cannot be condoned in law".                    E
      27. Thus, in case an authority proceeds in undue haste,
the Court may draw an adverse inference from such conduct..
It further creates a doubt that if there was no sufficient reason
of urgency, what was the occasion for the respondent no.4 to
proceed in such haste and why fresh tenders had not been             F
invited.

    28. It is evident from the record that the respondent no.4
had originally been allotted plot no.118, Sector-35 measuring
360 sq. meters which was converted to plot no.G-25, Sector-          G
27 measuring 392 sq. meters. However, as the respondent
no.4 did not deposit the required charges the said order of
conversion stood withdrawn. By subsequent conversion,
respondent no.4 got plot no.A-15 in Sector~44. Thus, two
conversions had been made on different dates. However, he
                                                                     H
    50        SUPREME COURT REPORTS                  [2011] 8 S.C.R.


A   paid the transfer charges only once to the tune of Rs.1.80 lacs.
    It is alleged that by first conversion, the respondent no.4 not only
    got the plot in a better location, but also a plot of bigger size.
    Second allotment was further, as alleged, in a far better
    geographical position.
B        29. There is no provision under the Act 1976 or Regulation
    1991 for conversion. It is rather governed by Office Order
    No.4070/ NOIDA/DCE0/92 dated 3.7.1992. The relevant part
    thereof basiC".ally provides that conversion was permissible only
    in case of residential plots. Relevant part thereof reads as
C   under:

         "3. In case of residential plots, only cancelled and
         surrendered properties shall be offered for
         conversion ........ .
D              The details of availability of properties shall be
         available in the office of Dy. Chief Executive Officer.
               xx                      xx                 xx
               xx                      xx                 xx
E
         6. All expenses pertaining to conversion such as
    •    eonversion charges, locational benefit charges, stamp duty,
         registration charges etc. shall be borne by the allottee.
               xx                      xx                 xx
F
         8. Conversion shall not be allowed more than once to any
         allottee.
               xx                      xx                 xx
G        11. Chairman-cum-Chief Executive Officer may relax the
         above guidelines in exceptional circumstances."
          30. The aforesaid Office Order dated 3. 7 .1992 stood
    modified vide order dated 27 .9.1993 (when the respondent no.4
    was the CEO, NOIDA) to the effect that a large number of
H   vacant plots were available in old developed sectors. The
NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA & 51
         ORS. [DR. B.S. CHAUHAN, J.]
same may be included in the plots availability list.               A
     31. That the list of available plots had been expanded
during the period when the respondent no.4 was CEO, NOIDA
and unallotted plots of various sectors including Sector 27 were
also included in that list in which the respondent no.4 himself
got the first conversion. It is a matter of investigation as to    8
whether the Order dated 3.7.1992 was modified vide Order
dated 27.9.1993 with ulterior purpose.
     32. Section 12 of the Act 1976 makes the provisions of
Chapter VII and Sections 30, 32, 40 to 47, 49, 50, 51, 53 and      c
58 of the U.P. Urban Planning and Development Act 1973
(hereinafter referred to as the 'Act 1973') mutatis mutandis
applicable to the Act 1976. Section 17 of the Act 1976 declares
that the Act 1976 would have an over-riding effect over the
provisions of the Act 1973. Section 18 confers the power on        D
the State Government to. make rules by issuing a Notification
for carrying out the purposes of the Act 1976. Section 19 of
the Act 1976 provides for the framing of regulations by the
NOIDA in respect of holding of meetings; defining the powers
and duties of the CEO; and management of properties of the         E
Authority etc. In view thereof, the New Okhla Industrial
Development Area (Preparation and Finalisation of Plan)
Regulations 1991 (hereinafter called as 'Regulations 1991 ')
had been framed with the prior approval of the State
Government as required under Section 19 of the Act 1976 and,
therefore, have statutory force. By virtue of the provisions of    F
sub-section 2(b) of Section 6 of the Act 1976, it is a statutory
requirement that in the plan to be prepared by the NOIDA, it
must necessarily provide as to for what particular purpose any
area/site is to be used, namely, industrial, commercial or
residential. The Authority is competent under sub-section 2{c)     G
of Section 6, to regulate the construction etc. having regard to
the nature for which the site has been earmarked. Sectjon 8
of the Act 1976 restrains the use of any site for the purpose
other than for which it is earmarked in the Master Plan. Section
9 prohibits the use of any area or erection of any building in     H
    52        SUPREME COURT REPORTS                [2011) 8 S.C.R.
                                                                         -
A   contravention of Regulations 1991. Section 14 of the Act 1976
    clearly provides for cancellation of allotment and resumption/
    re-entry, where the allotment had been made in contravention
    of the rules and regulations. In case the Authority wants to
    change the user of the land, condition precedent remains to
B   amend the Master Plan.                                         I

         33. There is nothing on record to show that any amendment
    had ever been made either in the Master Plan or in the
    Regulations 1991 before the change of user of land, when a
    13 hectare City Park situated near Sectors 24, 33 and 35 was
C   abolished and a new residential Sector 32 was carved out
    comprising 200 plots. Even if the said change made by Shri
    Ravi Mathur, IAS, respondent no.4 stood nullified, subsequently
    by Smt. Neera Yadav, respondent no.7, it does not exonerate
    him from committing an illegality. It is a matter of investigation
D   as to what was the motive for which such a change had been
    made by Shri Ravi Mathur, IAS, respondent no.4,
    unauthorisedly and illegally. Admittedly he was not competent
    to do so without seeking the amendments as mentioned
    hereinabove.
E
        34. The State or the public authority which holds the
  property for the public or which has been assigned the duty of
  grant of largesse etc., acts as a trustee and, therefore, has to
  act fairly and reasonably. Every holder of a public office by virtue
  of which he acts on behalf of the State or public body is
F ultimately accountable to the people in whom the sovereignty
  vests. As such, all powers so vested in him are meant to be
  exercised for public good and promoting the public interest.
  Every holder of a public office is a trustee. State actions
  required to be non-arbitrary and justified on the touchstone of
G Article 14 of. the Constitution. Action of the State or its
  instrumentality must be in conformity with some principle which
  meets the test of reason and relevance. Functioning of a
  "democratic form of Government demands equality and
  absence of arbitrariness and discrimination". The rule of law
H prohibits arbitrary action and commands the auJhority
 NOIDA ENTREPRENEURS ASSOCIATION v. NOIDA & 53
         · ORS. [DR B.S. CHAUHAN, J.]
 ·concerned to act in accordance with law. Every action of the A
  State or its instrumentalities should neither be su·ggestive of
  discrimination, nor even apparently give an impression of bias,
  favouritism and nepotism. If a decision is taken without any
  principle or without any rule, it is unpredictable and such a
  decision is antithesis to the decision taken in accordance with B
  the rule of law. The Public Trust Doctrine is a part of the law of
  the land. The doctrine has grown from Article 21 of the
  Constitution. In essence, the action/order of the State or State
  instrumentality would stand vitiated if it lacks bona tides, as it
  would only be a case of colourable exercise of power. The Rule c
  of 'Law is the foundation of a democratic society. (Vide: Mis.
  Erusian Equipment & Chemicals Ltd. v. State of West B~rigal
/ & Anr., AIR 1975 SC 266; Ramana Dayaram Shetty v. The
· lntemationa/.Airport Authority of India & Ors., AIR 1979 SC
  1628; Haji T.M. Hassan Rawther v. Kera/a Financial D
. Corporation, AIR 1988 SC 157; Kumari Sbrilekha Vidyarthi
  etc. etc. v. State ofU.P. & Ors., AIR 1991 SC 537; and M./.
  Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors., AIR 1999
  SC 2468).

        35. Power vested by the State in a Public Authority should E
  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 F
  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 G
  purpose and for none other. (Vide: Commissioner of Police,
  Bombay v. Gordhandas Bhanji, AIR 1952 SC 16; Sirsi
  Municipality v. Cecei/a Kom Francis Tellis, AIR 1973 SC 855;
  The State of Punjab & Anr. v. Gurdial Singh & Ors., AIR 1980
  SC 319; The Collector (Distt. Magistrate) Allahabad & Anr. H
    54       SUPREME COURT REPORTS               (2011] 8 S.C.R.


A   v. Raja Ram Jaiswal, AIR 1985 SC 1622; Delhi
    Administration (Now NCT of Delhi) v. Manohar Lal, (2002) 7
    SCC 222; and N.D. Jayal & Anr. v. Union of India & Ors., AIR
    2004 SC 867).

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

       It may be pertinent to mention that any observation made
  herein against respondent no.4 would be treated necessary to
D decide the present controversy. The CBI shall investigate the
  matter without being influenced by any observation made in this
  judgment.

         The writ petition stands disposed of accordingly.
E        Before parting with the case, we would likeJo express our
    gratitude and record appreciation to Dr. Rajeev Dhavan,
    learned senior counsel for rendering commendable assistance
    to the Court as Amicus Curiae.

F        WRIT PETITION (C} NO. 529 OF 1998
    NARESH PRATAP SINGH                  .... PETITONER
                               Versus
    STATE OF U.P.                ... RESPONDENT
       DR.. B.S. CHAUHAN, J. In view of our Judgment delivered
G today in Writ Petition (C) No. 150of1997 (Noida Entrepreneurs
  Association v. Noida & Ors.), no separate order is required in
  this writ petition which is accordingly disposed of.

    B.B.B.                            Writ Petitions disposed of.
H