HC refuse to quash corruption case in granting of illegal building permission
JKUT (Jammu), August-16-2021-( JNF):- Justice Sanjeev Kumar of Jammu & Kashmir and Ladakh High Court today refused to quash FIR registered by Vigilance Organziation Kashmir in granting illegal building permission at Srinagar.
FIR No. 12/2015, impugned herein has arisen from Building Permission No. 58/2008 dated 28.04.2008 granted in favour of the beneficiaries Waseem Mushtaq and others on the allegation that the petitioners-Public Servants Hammid Ahmed Wani and Feroz Ahmad Mir who were Member Secretary and Member representing LAWDA in the BOCA, abused their official position and in furtherance of criminal conspiracy, granted Building Permission No. 58 of 2008 dated 28.04.2008 in favour of petitioners Waseen Mushtaq and others for construction of four storeyed commercial complex with revolving restaurant and basement for parking purpose on the plot of land under Survey Nos. 885 min and 930 min situated opposite Exhibition Ground, Srinagar. This permission, it is alleged, was granted in supersession of earlier four building permissions i.e permission No. 691/2002 dated 20.03.2002 in favour of Mushtaq Ahmad Ganai and his two sons for construction of four storeyed commercial building on land under survey No. 885 min, permission No. 378/2002 dated 14.08.2002 in favour of Waseem Mushtaq and Naseem Mushtaq for construction of three storeyed commercial building on land under Survey No. 930 min, permission no. 379/2002 dated 14.08.2002 in favour of Waseem Mushtaq and Naseem Mushtaq for construction of three storeyed commercial building on land under survey No. 885 min and permission No. 381/2002 dated 14.08.2002 in favour of Waseem and Naseem for construction of three storeyed commercial building on land under Survey No. 930 min.
4 The impugned FIR, it is claimed, was registered pursuant to verification conducted by the VOK after it received written complaint regarding various illegal structures coming up in Srinagar city. During verification by the VOK, it came to light that BOCA of Srinagar Municipal Corporation had granted building permissions to some builders at Exhibition Ground and Bishamber Nagar in contravention of norms in vogue for such building permission. One such permission i.e Building Permission No. 58 dated 28.04.2008 issued in favour of petitioner Mushtaq Ahmad Ganai and his two sons came under scrutiny of the VOK. In the preliminary enquiry, VOK found that the officials of BOCA by issuing building permission No. 58 dated 28.04.20085 had regularized gross violations on the part of building owners, who, instead of raising four separate commercial complexes in accordance with earlier four building permissions, had constructed single mega commercial complex in complete violation of building permission and in contravention of approved Srinagar Master Plan 2000-21 and that the provisions of Control of Building Operations Act [„COBA Act’], building byelaws/rules framed thereunder, had been thrown to wind. It was, thus, concluded in the verification that the officials/officers of BOCA by acting in this manner and issuing building permission No. 58 of 2008, had abused their official position and conferred undue favour/advantage/benefit and wrongful gain to the building owners, namely Mushtaq Ahmad Ganai and his two sons and this was done in furtherance of conspiracy hatched by the officials/officers of the BOCA and the accused-beneficiaries. The VOK, thus, found that the officials/officers of the BOCA and the beneficiaries i.e Mushtaq Ahmad Ganai and his two sons had committed the offences under Sections 5(1) (d) read with Section 5(2) of the Act and 120-B RPC. Based on the outcome of preliminary enquiry/verification, impugned FIR was registered in the Police Station, VOK and the investigation set in motion.
Justice Sanjeev Kumar after hearing both the sides observed that the allegation in the FIR, that the sanction of revised permission legitimizing the illegalities and the violations committed by the accused-beneficiaries, was result of a criminal conspiracy hatched by the accused-public servants and the beneficiaries, is, prima facie, inferable from the circumstances narrated in the impugned FIR itself. Without saying much on the issue, I am of the view that the aforesaid aspects should be left, to be determined by the trial Court at appropriate stage and it could well be the stage of framing of charges in the case.
Court further observed that with regard to the contention of Mr. Jan, senior counsel that the Vigilance Organization, having once decided to close the case as not admitted, could not have arbitrarily and without justifiable reasons, reopened the same and vex the petitioners again, suffice it to say that it is true that at one point of time after the investigation in the impugned FIR, the then Superintendent of Police, VOK recommended the case to be sent for regular departmental enquiry against the accused-public servants. The said recommendations were made by SSP, VOK having regard to the development that had taken place during the pendency of investigation. The case was not recommended to be closed as not admitted on the ground that the investigating officer had not been able to collect sufficient evidence to connect the accused with the alleged offences, but for the reason that the Cabinet had come up with a new policy providing for regularisation of illegal structures in the Capital cities and the holy town of Katra. However, the State Vigilance Commission, on coming to now that the Vigilance Organization had closed certain cases under investigation had suo motu called upon the Director, Jammu and Kashmir State Vigilance Organization to provide a list of all the FIRs which had been closed as not proved during the year 2017 along with final reports, legal brief and comments of the Directors Vigilance Organization, so that view in the matter could be taken. While the matter was pending consideration of the State Vigilance Commission, GAD with reference to FIR No. 11/2015 which was identical to FIR 12/2015 had vide its communication dated 15.09.2020 directed the ACB to examine the matter afresh in the light of observations made therein. Taking cue from the aforesaid communication of GAD, the Director of prosecution in the Directorate of Anti Corruption Bureau vide its communication dated 26.11.2020 called upon the Sr. SSP of Police Station, Anti Corruption Burea, Baramulla to re-examine and further investigate both the FIRs aforesaid. It is in these circumstances, the matter was re-examined and subjected to further investigation. The argument of Mr. Jan, senior counsel that the decision to reopen the closed case was taken by the respondents arbitrarily is not substantiated by the record and, therefore, cannot be accepted. In view of the aforesaid discussion and without going much into the merits of the controversy, lest it may prejudice either side, I am of the considered view that the petitioners have not been able to make out a case for invoking extraordinary jurisdiction vested in this Court under Section 482 CrPC to quash the impugned FIR and the investigation carried pursuant thereto. Accordingly, CRM(M) Nos. 186/2021, 163/2021 and 192/2021 are dismissed. JNF