|
The Managing Director of the M.S. Shoes
Company is one Pawan Sachdev. It is said that he was involved in a CBI
enquiry, something which I regarded as irrelevant. If a person is entitled
to justice from the Government in a particular transaction, justice must
be done to him whatever be his character otherwise and whatever be the
public opinion of the person claiming justice. That is the only way a
stern judicial mind must act. Having practiced for decades, I have known
cases of seemingly deadly evidence against an accused but which on closer
scrutiny and skillful cross-examination turned out to be a complete
fabrication.
As a criminal lawyer, I have seen it happen again and
again. One of the most prominent illustrations that comes to my mind is
the case of Balbir Singh who was accused of being a conspirator in the
assassination of late Indira Gandhi. A Sessions Judge found him guilty and
sentenced him to death. A Bench of three Judges of the High Court of Delhi
unanimously sustained his conviction and sentence; and yet when the matter
was closely examined by three Judges of the Supreme Court, they had no
difficulty in reaching a unanimous conclusion that the case was false. I
had the honour of appearing for Balbir Singh and I regard his acquittal as
one of the highlights of my legal career.
The case against Sachdev had
not gone to Court at all. The CBI was investigating some allegations and
finally it came to the conclusion that there was nothing which would
warrant even his prosecution. Sachdev produced before me official
communication from the CBI exonerating him completely of all accusations.
I mention this for the benefit of those whose minds have been poisoned by
interested propaganda that I had taken a favourable view of MS Shoes
Company whose Managing Director was a bad character. It turned out that
the public perception of him was totally wrong, but I must make it clear
that even if he was a man of bad character, I would still have ached the
same conclusion as I did in the matter which was presented to me
officially for my decision as a Minister for Urban Development. I had
announced my settled policy that all useless avoidable litigation has to
be eliminated and will be eliminated. I will not compel citizens to wait
for decades for some Court to take up their cases and hear them. I had
seen how Government officers fighting with public money harass innocent
citizens and expose them to the torturous delays of our legal system. The
lawyers have had a field day and so also Corrupt bureaucrats and
occasionally Judges too.
Whenever a citizen came to my Ministry and
asked for Justice, I gave a hearing both to the applicant and my officers
and speedily took a firm decision one way or the other. One contention I
consistently rejected from my officers: that the matter was pending in
Court. Repeatedly, I had explained to them that the matter was in Court
because the citizen had been initially denied justice. If two persons
fight in Court, nothing prevents one or both of them realizing that the
fight does nobody any good and a reasonable compromise is the best
guarantee of justice. This policy hurt vested interests and provoked
resistance from officials ever reluctant to kill the goose that laid the
golden eggs. Some of them were just moral cowards and knew what justice
demanded but were afraid to take the right action for fear of being
misunderstood.
[Page No. 84-85]
The Housing Urban Development
Corporation, shortly called HUDCO, was a proposed lessee from the
Government of a piece of land at Andrews Ganj in Delhi. This land had been
allotted to it for putting up a guest house block. Tenders were invited by
HUDCO. When they were opened in July 1994, M.S. Shoes' offer was found the
best and HUDCO agreed to sublease 25 shops, 9 guest house blocks,
restaurants and kitchens for a total price of Rs. 100 crores. A letter of
allotment was issued in October 1994 and M.S. Shoes paid out a sum of
nearly Rs. 40 crores by way of the first installment. The second
installment was due in March 1995. This second installment, however, was
not paid on the due date.
M.S. Shoes contended that the scheme of the
transaction between them was that the sub-lease by HUDCO should be made
available to them for execution and the company be allowed to start
construction, making it commercially possible for it to pay the second and
third installments. The company further pleaded that no reciprocal
obligation had been performed by HUDCO. In view of the threatened
cancellation of the allotment, the company filed a suit in the High Court
pleading for extension of time. This appeared to have been granted but on
some onerous terms. HUDCO then proceeded to cancel the allotment in
January, 1996. A comprehensive suit was filed in the District Court
challenging the validity of the cancellation on a number of grounds not
litigated in the High Court suit. On an interlocutory application to
prevent l-IUDCO or the Government Department from re-auctioning the
property to anybody else, the District Judge heard elaborate arguments and
finally passed an order dated 23 February 1998 extract from which
deserves' to be quoted.:
"Prime facie, the plaintiff has succeeded in
establishing that on reading the allotment letter as a whole, the question
of payments and the conduct of the parties suggest that the time was not
intended to be essence of the contract. Further, the plaintiff had also
succeeded prime facie in establishing the fact that till date the
defendant No. 2 is not in a position to perform his part of obligation
since the project not having been provided with common facility and the
completion certificate not having been obtained. Further, the plaintiff
has also established in like manner from the documents placed on record
that the defendant No. 2 had no right, title or interest in the said
property until 4th July, 1997 and therefore, no final arrangement could
have been made between the parties till 4th July, 1997 whereas the
plaintiff long back had parted with 40% of the total price of the project
in return of which he has got nothing till date but the cancellation of
his allotment. The additional document brought on record by the plaintiff
have a lot to speak in respect of a prima facie case being in favour of
the plaintiff."
It is pertinent to point out that M.S. Shoes had
borrowed large moneys from financial institutions. These moneys had I
'teen advanced obviously on the expectation that the project will be
successfully completed and their loans will be repaid with interest. The
financial institutions also appeared before the Court and represented to
the Court that the cancellation of the contract and forfeiture of the
moneys paid by the plaintiff were tota1ly unjustified. This order of the
District Judge was passed before I became a Minister some weeks
later.
It appears that the matter had reached Members of Parliament and
the cruel and discriminatory action of HUDCO had I "come the subject
matter of a Starred Question No. 371 which was answered in the Rajya Sabha
on 20 March 1997. The question was addressed to the Prime Minister by two
responsible Members, Suryabhan Patil Vahadane and Rajnath Singh "Surya."
The text of the question indicates the thrust of the questioners:
[Page
No. 85-87]
"Will the PRIME MINISTER be pleased to state:
"(a)
whether it is a fact that HUDCO has adopted a dual policy in extending the
time for payment of instalments for its project at Andrews Ganj;
"(b)
whether it is also a fact that one of the parties, M/s Ansal Builders,
have been given possession of land and extension of time for payment of
second instalment, while the other tenderer, M/s M.S. Shoes, have neither
been given possession of land nor extension for payment of second
instalment, inspite of initial payment of Rs. 70 crores collected from
banks and the public; and
"(c) if so, what are the reasons therefor and
what action is being taken to ensure equal treatment to MIs M.S. Shoes
by
HUDCO?"
A detailed answer was furnished not by the Prime Minister
but by the Minister of State in Urban Affairs and Employment Ministry, Dr.
U. Venkateswarlu. While it was admitted by the Minister that extensions of
time had been granted for payment of overdue instalments to an Ansal
Company and had not been granted to M.S. Shoes, the discriminatory
treatment wm justified on the ground of difference of facts. It is not
difficult for a Minister to make out a list of facts which may make ~
technical distinction without a real difference. Not repelling the
suggestion that HUDCO had not performed its share of th' bargain, the
Minister claimed that the obligations were not that of HUDCO but of M.S.
Shoes. When I read the answer of the Minister, my predecessor in office, I
had no difficulty in coming to the conclusion that it was based upon a
gross mis apprehension of the contract between the parties and I was not
surprised that the Members of Parliament in due course gave notice of
breach of privilege against the Minister for having misled the House by
the answer which he had given in the previous year. It must be stated that
the notice of breach of privilege was an extremely well-argued document
running into more than eight pages and the notice was supported not merely
by the original questioners but by other Members of Parliament as
well.
35 Members of Parliament covering the most important political
parties had represented to my Ministry to look into this matter. The
gravamen of these communications was the clear insinuation that the
powerful Ansals were having their defaults condoned whereas this poor man
with hardly any assets of his own was being harshly treated. Incidentally,
one of the Member of Parliaments was Vasundhara Raje, a Minister in our
own Government. I had, therefore, to take upon myself the task of
examining the real position and coming to my own independent conclusions,
a task which I have never shirked.
Almost the same time the Rajya Sabha
Secretariat was insisting on our response to the notice of breach of
privilege formally given by responsible Members of the House. I had passed
two orders, one of 17 June 1998 and the second of 20 April 1999. The
second order became necessary because officers in my Department could not
reconcile themselves to a manifest act of justice which the facts of the
case imperatively called for. Both these orders were directed to be
communicated to the Rajya Sabha and we had candidly informed the House
that the reply furnished by my Ministry in March 1997 was inaccurate 1n
certain respects. However, I said that the facts of the case were so
complicated that the reply though inaccurate was bonafide and there was no
intention to mislead the House. The two orders are fully reproduced here
below:
[Page No. 88-89]
OFFICE OF THE MINISTER OF URBAN DEVELOPMENT
Subject: Misleading reply to Starred
Question No. 371 dated
20.3.1997
Notice of breach of privilege regarding
The above matter
has been fully examined in this Ministry, the following orders were passed
on 17.6.1998 and 13.7.1998 by me:
"Based on the representation of
MSSEL, I had directed the Department to examine in detail the terms of the
tender and whether mutual obligations were fulfilled by both the parties
with regard to the 9 guest house blocks/9 restaurants/25 shops. It was
alleged that HUDCO did not fulfill the terms of the tender and allotment
letter, even after receipt of 40% of the bid amount. Based on HUDCO's
response, the Department has put up a detailed note which I have gone
through. I have the following observations:
1.The last date for
submission of tender was 15 July, 1994. The brochures for the above bid
clearly mentions as follows:
a) "Guest houses: These are built with
high standards of construction."
b) "The guest houses are finished in
permanent materials."
c) "The rooms are finished in ceramic
tiles."
d) "All the rooms at the guest houses are centrally
air-conditioned . . .are equipped with telephone connections."
From the
above quotations, it is clear that HUDCO gave impression to the bidders
that the guest houses were ready to be handed over to the bidder.
2.
Regarding sub-lease of the property, the brochure says as
follows:
"Built up area will be given on long term lease basis. Govt.
has given the land to HUDCO on 99 years lease. The built space will in
turn be leased to buyers on long term lease co-terminus with the 99 year
lease period given to HUDCO." An examination of the record shows that
lease was executed be the Ministry of Urban Affairs & Employment with
HUDCO only on 4th July, 1997. This is almost three years after the tenders
were called. Even if MSSEL had paid the bid amount as scheduled, HUDCO
would not have been able to execute sub-lease because they did not have
lease in their favour.
3. Even though the allotment letter stipulates
2nd instalment to be paid on 31.1.1995 and 20% on possession, the
clearance from the DUAC for the building plan were applied and received as
late as 15th May, 1996. This means that the buildings were constructed
without authorization from the DUAC. Since even the sanction of the DUAC
was not there till the above date, possession of the building in question
could not have been handed over to the bidder prior to that date.
4.
The building plans for the above buildings were approved by the MCD only
on 9th August, 1996. The above buildings could not have been handed over
to the bidder prior to that date even though the brochure had committed
that the buildings were complete when the tender was floated.
5. It is
learnt that completion certificates for the above buildings have not been
issued even today by the MCD. Therefore, the buildings are not yet ready
to be handed over to the bidder even today while the brochure committed
that the guest houses were built and ready.
[Page No. 90-91]
6.
Clearance from the Fire Department was obtained only on 13.8.1997. HUDCO
could not have handed over the buildings without mandatory clearance from
the Fire Department.
7. According to the terms of the letter of
allotment, both the parties were liable to take appropriate action under
the Urban Land Ceiling Act. According to Section 27 of the Urban Land
Ceiling Act, it is the transferer who has to make application for
exemption under Urban Land Ceiling Act. According to Section 19(1), vacant
land held by Central Government or State Government or any cooperative
established by or under a central or provincial or state act or any Govt.
company is exempt from the Land Ceiling Act. However, land with a building
is not exempted under Section 19(1); therefore, HUDCO was bound to make
the application under Section 27 after receipt of the first instalment of
40% and if permissions were not granted. In the present case HUDCO did not
take any initiative to file the application for permission. Therefore,
HUDCO did not fulfill its obligation under the terms of the agreement.
8. Section 269 UC (3) of the Income Tax Act states that both the
parties have to make an application as per Rule 48 (b) in Form No. 37-I,
within 15 days of the date of agreement to sell the property. In this
case, it is seen that HUDCO did not take any initiative to file the papers
as required under the above Act and Rules. It is seen that in the case of
Ansals, who were the bidders for the shopping arcade, HUDCO had forwarded
Form 37-I to the Ansals on their own initiative (see letter dated 15th
June, 1995, from HUDCO).
9. It is seen that in the case of Ansals, who
were the allottees for the shopping complex, HUDCO had given repeated
extensions for payment of instalments without interest, after pointing out
repeatedly in their own letters that Ansals were at fault. In Ansals case,
it was the responsibility of the Ansals to get building plans sanctioned.
They even delayed taking over possession inspite of repeated request by
HUDCO. HUDCO's letter dated 7th September, 1996, is a good example of the
leniency shown towards Ansals.
10. MSSEL had gone to the Court of
Additional District Judge, R.S. Arya, challenging the cancellation of the
allotment letters. The above Court has confirmed the stay of re-auction of
this property. This Ministry has gone in appeal against the above
judgment. However, the Court has made some pertinent observations in the
above judgment, from which I quote
"I do not think that the act of
defendant No. 2 forfeiting the entire amount of 1st instalment is
justified in the context and perspective of the fact and circumstances
discussed as above. What right defendant No. 2 had to forfeit the amount
of 1st instalment running in crores when defendant No. I itself was not
and even till date is not in a position to perform its part of
obligations. To contend that it was not the obligation of defendant No.2
to obtain clearance from Income Tax authority under ULC Act does not hold
good since it is the duty of the seller to execute the documents and take
initiatives for obtaining such clearance. This was not so done by the
defendant No. 2 since no proforma for agreement to sub-lease was provided
to the plaintiff along with the letter of allotment as was done in the
case of APIL. Not only this, but the defendant No. 2 even went to the
extent of granting NOC to APIL for raising loans from the bank against the
security of the Project in violation of the terms and conditions of the
allotment whereas on the other hand the plaintiff was even denied its
genuine request for a reasonable extension of time in making the payment
of second instalment."
[Page No. 92-93]
"Prima facie, the plaintiff
has succeeded in establishing that on reading the allotment letter as a
whole, the question of payments and the conduct of the portion suggest
that the time was not intended to be essence of the contract. Further, the
plaintiff had also succeeded prima facie in establishing the fact that
till date the defendant No. 2 is not in a position to perform his part of
obligation since the project not having been provided with common facility
and the completion certificate not having been obtained."
11. Quoted
below is clause 3(xi) of the allotment letter:
"HUDCO will provide
assistance for obtaining approval of the competent authority under the
Urban Land (Ceiling & Regulation) Act, 1975 and also of the
appropriate authority in terms of the chapter xx-c of the Income Tax Act.
If these are not accorded, HUDCO will refund the amount paid by you
without interest and you shall not be entitled to any compensation or
damages of any kind whatsoever."
From the above, it is clear that
statutory clearances were not sought for. The responsibility of HUDCO with
regard to permissions under Urban Land (Ceiling & Regulation) Act and
Income Tax Act was already discussed earlier. Since these
clearances
were not obtained by HUDCO, the bidder was justified in not paying the
second instalment as he discovered after payment of the first instalment
that there was a huge gap between promises made in the brochure and the
actual ground realities. Without applying for permissions from the
statutory bodies, without obtaining sanctions from the DUAC, without
obtaining building sanctions from the MCD, and without a completion
certificate and power connection it was unfair and unjustified for HUDCO
to have demanded payment of further instalments after giving the
impression to the bidder that the buildings were ready to be handed over.
Since the HUDCO has not fulfilled the obligation, it is natural justice
that the allotment be restored immediately. It is unfair to refund the
amount as envisaged in Clause 3 (xi) of the allotment letters since the
primary responsibility rests with HUDCO, in not fulfilling the statutory
requirements. After having invested large sum of money, three and a half
years back, it is unfair to merely refund the money. The bidder has to be
given a fair deal by restoring this allotment. He also should be paid
whatever interest, HUDCO earned on the amount, which must have been
deposited on long term basis in the bank. The interest earned should be
adjusted against the second instalment. HUDCO will take immediate steps to
get all the statutory clearances. Once statutory clearances are obtained
including completion certificate, HUDCO will give the bidder three months
time to pay the 2nd instalment as per original allotment letters. Third
instalment will be paid as per the terms of original allotment
letters.
"Issue directions to HUDCO as above, briefly indicating the
reasons. HUDCO should not waste time and money on avoidable
litigation."
SD/(UDM)
17.6.98
[ Page No. 94-95]
"I have gone
through the opinion of the Deptt. My orders were only regarding the guest
house blocks/restaurants/shops and not for the five star hotel site
because third party rights have already been created in favour of Leela
Hotels Ltd. over the hotel site. The Deptt. has not come up with any valid
argument to refute my conclusion that HUDCO did not fulfill its obligation
under the terms and conditions of the allotment letters. Even today HUDCO
is not in a position to fulfill its obligation as completion certificate
has not yet been obtained by HUDCO."
I reiterate my view that it was
upto HUDCO to take initiative to obtain the necessary clearance under the
ULCR Act and the Income Tax Act. The Acts are very clear and the practices
are equally clear.
Clause 11(c) of the lease deed is quoted
below:
"After the completion of the construction and development of the
community centre but not later than ten years from the date of this
perpetual Lease Deed, the Lessor will have the right to review the
arrangement with the Lessee and enter into fresh arrangement with any
other government agency or public sector undertaking for the purpose of
lease/maintenance and administration of the properties. The rights and
liabilities of the Sub-Lessee under the sub-lease entered into by the
Lessee with sub-lessee in respect of the properties developed in the
community centre complex shall, however, continue in the same manner by
the designated agency."
From the above clause it is clear that the
Ministry continues to have a definite say in the property, even after
execution of the lease deed.
The allotment letter says:
"A
monitoring committee consisting of Additional Secretary, Joint Secretary
dealing with the subject and Joint Secretary
(Finance) from the
Ministry of Urban Affairs, Director General (Works), CPWD and CMD, HUDCO
will monitor/progress of the works undertaken the utilisation of surplus
funds for the construction of General Pool Residential
Accommodation."
Therefore, this Ministry has the role of continuous
supervision regarding the project even after execution of the lease
deed.
Allotment letter says further:
"The details of sub-leasing
arrangement in respect of facilities developed on the Community Centre
land will be finalised by the Government in consultation with
HUDCO."
Therefore, the Government still has the right to exercise its
option even after executing the lease deed. Moreover, the date on which
the allotment was cancelled, i.e., 1 January 1996, lease had not yet been
executed by the Government with HUDCO and, therefore, the land still
belonged to the Government on the date of cancellation. Now, we are only
trying to undo the unjustified decision which was taken when the land was
still with the Government and not with HUDCO. In fact, the tender was
invited by HUDCO on the direction of this Ministry. The Andrews Ganj
Project has been entrusted by this Ministry to HUDCO for execution as an
agent of the Ministry. Therefore, HUDCO in this case was only an agency
authorised by this Ministry to deal with this land on "No Profit No Loss"
basis and, as such, the land was given to HUDCO at a nominal rate of Re. 1
per acre and not at market rate; otherwise, under GFR 282 (3), no land
could have been given to Public Sector Undertaking at nominal rate of Re.
1 per acre. Further, in another file orders were passed by me that this
Ministry reserves its rights to issue directions to HUDCO in respect of
this land. Therefore, this Ministry continues to have a say in the matter
and can issue directions to HUDCO in respect of this land as it would not
be tantamount to any directive to a Public Sector Undertaking and, as
such, does not require any approval or clearance from Deptt. of Public
Enterprises, as HUDCO's role here is not of a Public Sector Unit, as
explained above, but an agency of the Government.
[ Page No 96-97]
Regarding the Secretary's opinion of application of Rule 4 (2) of the
Government of India (Transaction of Business) Rules, 1961, Legal Affairs
Deptt. had opined in the other file pertaining to the five-star hotel site
as follows:
"As per the said rule, it has been clearly prescribed that
when the subject of a case concerns more than one Department, no order be
issued untill all such Department have concurred, or failing such
concurrence, a decision thereon has been taken by or under the authority
of Cabinet. Clause (2) Sub-clauses (a), (b) and (d) of Rule 4 of the said
Rules are also applicable to the instant case because the Agreement of
Lease to HUDCO on a nominal sum of Re. I involves an abandonment of
revenue, it involves grant of lease of land and has also financial
implications. Therefore, the Ministry of Urban Affairs & Employment
was required to obtain previous concurrence of the Ministry of Finance
before granting the lease to HUDCO and/or allowing the sub-lease to Leela
Hotels. Further, clause (3) Sub-clause (c) of Rule 4 provides that the
Ministry of Law shall be consulted on the preparation of important
contracts to be entered into by the Govt. But in this case, the advice of
the Ministry of Law was not to enter into such a contract. Therefore, in
this situation, it was obligatory on the part of the Ministry of Urban
Affairs to seek the approval of the Cabinet before finalising the lease
and sub-lease in question. It appears that in the absence of concurrence
of the Ministry of Finance, Ministry of Law and other concerned
Ministries/Departments if any, the Perpetual Lease Deed executed by GOl in
favour of HUDCO and the Agreement to Sub-Lease followed by a transfer of
possession of the land by HUDCO to Leela Hotels do not appear to be
legally in order."
When there was actual revenue loss to the
Government, this Ministry refused to comply with Rule 4(2).
All the
earlier actions, permissions, approvals and directions of this Ministry
given to HUDCO in regard to Community Centre were, therefore, not with the
sanction of the Department of Law & Justice, Ministry of Finance,
Department of Public
Enterprises etc. or the approval of the Cabinet.
The present issue of restoration does not involve any loss either to the
Govt. or to the HUDCO and still the Department advises that we are bound
by Rule 4. This is certainly not an acceptable advice.
There is no loss
of revenue either to Government or to HUDCO because when allotments are
restored, HUDCO is liable to get the remaining instalments. HUDCO cannot
claim any loss on account of such restoration because even today HUDCO is
not in a position to fulfill its obligation since completion certificate
has not yet been obtained by HUDCO for these buildings and neither any
legal formalities regarding IT Act and ULCR Act have been complied with by
HUDCO and parting with the interest earned does not cause any loss of
revenue to Government as the amount received has been enjoyed without
performing reciprocal obligations towards the allottee. Since there is no
revenue loss, it does not warrant any approval from the Finance Ministry.
It is purely an dministrative decision which does not have financial
implications as far as HUDCO or Government is concerned since as per
clause VII of the allotment letter of 19.3.1996, the amount pertaining to
the HUDCO is to be kept in a separate account. The lease agreement has
also provided accordingly.
[Page No. 98-99]
Various letters of HUDCO dated 17 April 1995, 2
May 1995, 24 May 1995 and 20 March 1996 are examples of leniency
that
Ansals were granted interest-free extensions even after taking
actual physical possession on 10 November 1995 for construction. While
approval from MCD was responsibility of the allottee, in the case of Guest
Houses Blocks such approvals were the responsibility of HUDCO, as the
properties when tendered were constructed properties. In ANSAL's case,
HUDCO and this Ministry have considered in public interest/commercial
prudence the deemed date of possession as of entertainment of maps by MCD
inspite of all other obligations performed by HUDCO while terms of
allotment of Five-Star Hotel and ANSALS are same.
Under Clause (xvi) of
the Lease Deed, the lease was governed under the Government Grants Act,
1895. Since the land is given under the Government Grants Act and since
the lease is governed under the Government Grants Act, the following
provisions of Government Grants Act are relevant which are reproduced
below:
"3(1) The Crown has an unfettered discretion under this section
to impose any condition, limitation or restriction in its grants and the
rights, privileges and obligations of the grantee would be regulated only
according to the terms of the grant itself though they are inconsistent
with the provisions of any statute or common law."
"3(6) When the
Government conveyed a right of chank fishery, the lease amounts to an
interest in immovable property to which provisions of Government Grants
Act are applicable and in view of Section 3 of the said Act, the
Government is entitled to put such conditions in a grant which a private
individual could not. Hence, a condition of unilateral cancellation of
lease by the Government without assigning any reason, would not be invalid
and unenforceable."
"3(13) Where the land belongs to Government, it is
free to give lease or rights to cultivate to whomsoever it chose and can
change its policies from time to time in accordance with its own social
objectives and any order modifying or nullifying the earlier policy
decision by a subsequent resolution cannot be deprivatory of any one's
right."
Therefore, this Ministry has the right to issue directives, as
deemed necessary as provided for in the above Act.
In any civilized
society, a Government or a Government agency can not get away making false
promises especially in commercial transactions; they would be penalised
severely since at least the Government has no moral right to cheat the
public for whose benefit the Government is expected to operate.
Tall
promises made by HUDCO on behalf of the Government could not be kept and
even today they are not in a position to
keep the same. I have detailed
out the reasons under which I have ordered especially at 'X' on page 37/N.
It is not necessary for me to repeat my earlier arguments as none of these
have been refuted by the Department.
In a democracy, it is the
responsibility of the Government and especially of an elected political
representative to ensure that the Government gives a fair deal to its
citizens and does not bully the helpless citizens by powers of law and
authority Which the Constitution has empowered the state. There is very I
~t tie an ordinary citizen can do to get justice if the Government lecides
not to grant justice since the Government has access to Unlimited funds
and can hire the best legal brains. The citizen can go to court but it
would take a life time to get justice since there is option to appeal to
the Supreme Court. The properties question, constructed in 1994, are fast
deteriorating which is causing loss to the Government revenue. In this
case, a Court has delivered judgment which appears to me to be extremely a
balanced view of the situation. The Government can take cover under the
excuse that appeal has been filed against the above judgment. But there
was no moral authority behind filing such an appeal and HUDCO lost the
chance of a lawful settlement offered under the court orders.
[Page No. 100-101 ]
Our agency was responsible for the delay. The allottee had paid huge
amount of money as first installment and he saw very little of the
promises made out in the brochure being kept. Therefore, he was perfectly
right in challenging the cancellation letters. He felt that his money was
blocked for a long time and that it was forfeited illegally. His
apprehensions were reasonable and it has stood the test of time since
HUDCO could not obtain the completion certificate even now. Therefore,
HUDCO is legally obliged to restore the allotments.
I reiterate my
views expressed earlier and order that a directive be issued by the
Department to HUDCO as indicated earlier. It does not warrant Presidential
directive and, therefore, does not warrant reference to the Department of
Public Enterprises; no concurrence is required from Ministry of Finance
either.
"HUDCO will immediately withdraw the appeal by the next date of
hearing i.e. 16 July 1998, and MSSEL will also withdraw all the
litigations and legal notices given to Government pertaining to these
allotments on receipt of restoration letters as per my orders. An
undertaking should be taken from MSSEL that they will not claim any
damages from Government or HUDCO in respect of these allotments after
restoration. "This decision does not affect any stand taken or assurance
given to Parliament. It also does not affect any pending litigations as
there are no third-party rights created on this property.
"Put up a
draft of directive to HUDCO for my perusal by 14 July 1998. "This file
will not be referred to any there Department or authority without my
orders."
S D/-(UDM) 13.7.1998
" In view of the above orders, it has to be admitted that the reply
furnished on 20 March 1997 was inaccurate in certain respects. However,
the facts of the case were complicated and the reply was given bonafide
and there was no intention to mislead the house, therefore, no breach is
committed."
Sd/
(RAM JETHMALANI) UDM 20.04.1999
Games of the
Bureaucrats
The disgruntled officers of my Ministry whom I overruled
leaked out the papers to Subramanjan Swamy who not only held a press
conference but kept writing to the Prime Minister that I should be
prosecuted. I immediately wrote a letter to the Director of the CBI asking
him to investigate for I had nothing to hide. Here is my letter dated 27
August 1998, followed by a letter of 4 September 2000. Both the letters
are reproduced here below:
[Page No. 102-103]
"Dear Dr. Mishra, "I am enclosing herewith a news item. It speaks for
itself.
"1 am inviting you and earnestly requesting you to take
cognizance of the charge of corruption levelled by Swami.
If there are
any legal obstacles which protect Ministers against inquiry, I hereby
waive them all. You can exercise all your statutory powers including
search, seizure and arrest. I hope, you will invite Swami to file an FIR
with you. If it turns out that he is indulging in one of his usual
canards, he should he dealt with u/S 182 and/or Sec. 211 of the Indian
Penal Code.
"I have reason to suspect that some disgruntled officers of
my Department are passing on stolen official papers to Swami. I would
request that this aspect of the matter may also be
investigated.
"Needless to say that you and your officers are free to
interrogate me at any time of the day or night.
"With warm personal
regards."
"Dear Mishra,
Sub: Swamy's Charges
"This is in
continuation of my DO letter No. VIP/LIAEM/98/ 3161-L dated
27.8.1998.
"Kindly find enclosed copy of the press release dated 26th
August, 1998 issued by Subramanian Swamy in M.S. Shoes case and the Press
release dated 29th August, 1998 regarding Sitaram Bhandar Trust. The Press
releases contain the complete notings from both the files. These raise
reasonable suspicion about the identity of persons involved and/or to be
questioned.
"Needless to say my invitation that you probe charges
against me, stands.
With warm regards,"
Yours sincerely, Sd/ (Ram
Jethmalani)"
The CBI did not find the trash worth touching but my dear
friend Soli had discovered something to hug and hatch.
One should see
Indian Express of 24 July (see Annexure VI) to see how Sorabjee uses that
one till today. Some one in the PMO has egged him on to this sordid
game.
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