SURYA KANT,J - (1.) THIS order shall dispose of Criminal Misc. Nos. 32475-M, 32532-M, 32534-M, 33035-M and 35266-M of 2007 as all these petitions under Section 438 of the Code of Criminal Procedure (in short 'the Code') seeking anticipatory bail have arisen out of FIR No. 5 dated 23rd March, 2007, under Sections 7, 13(1)(c) and (d), 13(2)/14 of the Prevention of Corruption Act, 1988 and Sections 409, 420, 467, 471 and 120-B of the Indian Penal Code, registered at Police Station, Vigilance Bureau, Ludhiana.
(2.) WHILE the petitioner in Criminal Misc. No. 32475-M of 2007 (G.K. Gambhir) is a Director; the petitioner in Criminal Misc. No. 32532-M of 2007 (Vinay Subhikhi) is the Vice President (Corporate Affairs); the petitioner in Criminal Misc. No. 32534-M of 2007 (Sunil Sharma) is the General Manager (Human Resources and Personnel) and the petitioner in Criminal Misc. No. 35266-M of 2007 (Syed Arshad Husain Naqvi) is a former Manager (Marketing) of M/s Today Homes and Infrastructure Private Limited. The petitioner in Criminal Misc. No. 33035-M of 2007 (Bharat Inder Singh Chahal) is a former Media Advisor to the then Chief Minister of Punjab. A brief reference to the facts which find mention in the subject FIR as also brought on record by way of pleadings/documents and/or during the course of hearing, may be made. 3.1. On 28th June, 1979 a Scheme regarding construction of "Ludhiana City Centre" ( in short "LCC") in Saheed Bhagat Singh Nagar Development Scheme was sanctioned by the Improvement Trust, Ludhiana (for short "the Trust"). After more than two decades, the Trust vide its Resolution No. 130 dated 23rd September, 1999 resolved and got the land use changed in respect of 26 acres of land on 10th October, 2001 from the State Government. Even prior thereto, i.e., in November, 1999, the Trust, by way of advertisements, invited designs for the LCC from experienced Architects. The Design by M/s Arkitektural Grid, New Delhi was selected which had provision for Mall, Multiplex, Auditorium, Library, Information Technology Centre, Hotel and Basement Parking etc. in a built-up area of about 30 lac sq. feet. Similarly, M/s Infrastructure Professional Enterprises Private Limited was appointed, by the Trust as its Consultant for preparation of "Request for Proposal" (in short "RFP"). 3.2. Some of the salient features of the RFP were as follows :- "1.3 Scope of Work :- Development of the Ludhiana City Centre in totality by its own finances, within a stipulated time frame. This will include all facilities as stated here after and transferring all the facilities (in similar condition as during Commercial Operation Date) to LIT, using either of the two models vis Joint Venture (JV) or Build, Operate and Transfer (BOT) basis. 2.1 Brief description :- xx xx xx xx For the assessment of the highest financial benefit to LIT the calculation will be done on Net Present Value (NPV) basis for total rental/licence fee earning in entire concession period considering 10% discounting rate per annum. 3. PROPOSED PROJECT STRUCTURING :- xx xx The SPV will devise strategy for the most suitable mode of lease/disposal of the developed properties, to maintain both the profit and public good motive of the development. It will look for potential tenants and get the highest bids and will continue as a going-concern throughout the concession period after which the tenure of the SPV may be extended. xx xx The Project structuring under the two models will be as follows :- * In case of BOT, the Developer will retain all the revenues generated by the SPV after recurring costs including costs of O&M have been met. The developer will mention the concession period in which they expect to recover their investments. The developer will also mention the year wise Licence Fee to be given to LIT during the concession period. * In case of Joint Venture (JV), land will be considered as the investment component from the side of LIT. The bidder would be expected to incur all other development costs. In the JV, the equity share of LIT and the Bidder will be in the ratio of 30:70. SPV will be responsible for distribution of all revenues, after recurring costs including costs O&M have been met, in the ratio of 30:70 amongst LIT and the Bidder respectively. The bidder is expected to state the concession period in which under such an arrangement they expect to recover their investment costs. After the end of concession period the equity share of LIT will become 100%". 3.3. Nothing tangible, however, happened till 14th January 2005 when the State Government "granted permission" to the Trust to invite "Expression of Interest" which was widely advertised in a number of leading Newspapers and in response thereto, 26 firms/prospective bidders are stated to have purchased the RFP document. A pre-bid meeting was held with the prospective bidders/firms on 2nd April, 2005 wherein certain queries are stated to have been raised which were quenched by way of a written reply by the Architects and Consultants engaged by the Trust. 3.4. The Trust vide its letter No. 2679 dated 8th April, 2005 duly informed the State Government regarding the events and decisions taken in the previous meeting. 3.5. Meanwhile, the requests from some of the prospective bidders including M/s Today Homes and Infrastructure Private Limited "for changes in the RFP document" were received. The date for submission of the bids was accordingly extended from 10th April, 2005 to 10th May, 2005. 3.6. On 28th April, 2005 the Chairman of the Trust (Paramjit Singh Sivia/Sibia) asked the Consultant to carry out the changes in the RFP document as requested by some of the prospective bidders. The suggested changes were communicated to the applicants by the Chairman himself on 28th April, 2005 itself. 3.7. On 6th May, 2005, the Estate Officer of the Trust informed the Government regarding the last date of receipt of the bids and also requested the Government to "impart necessary guidelines" for constitution of the committee to examine the bids. 3.8. On 9th May, 2005, however, the selection criteria is stated to have been modified and notified also. On the last date of the receipt of the bids, i.e., 10th May, 2005, six firms, namely, (i) M/s Omex Construction Ltd., New Delhi; (ii) M/s D.L.F. Universal Ltd., Gurgaon; (iii) M/s IVRCL City Corporation Joint Venture, New Delhi, (iv) M/s Bestech India Pvt. Ltd., (v) M/s Today Homes and Infrastructure Private Limited, New Delhi and (vi) M/s MGF Development Limited, New Delhi submitted their respective bids. 3.9. The Chairman of the Trust decided to open Envelopes "A" and "B" at 11.30 AM and 4.30 PM respectively on 11th May, 2005; to invite the presentations from the qualified bidders on 17th May, 2005 and thereafter to open the financial bid on 17th May, 2005 followed by "Letter of Intent" ("LOI") on 18th May, 2005. However, before the Chairman of the Trust could go by the said schedule, the Assistant Estate officer and the Municipal Engineer are stated to have apprised him through a "note" dated 11th May, 2005 that no guidelines were received from the Government regarding the opening of the bids. The Superintending Engineer of the Trust is also alleged to have advised the Chairman that the bids should be opened by a Committee constituted by the State Government and also that the Envelop "C", i.e., the Financial Bids should be got evaluated from a specialist like Chartered Accountant and the proceedings be got approved from the State Government. 3.10. However, the Chairman over-ruled the afore-stated objections and on 12th May, 2005 all the six bidders were declared to have qualified technically and called by the Chairman for their presentation on 17th May, 2005 at 9.30 AM.. It is alleged that on, 17th May, 2005 when the presentation was going on, the Deputy Director, Local Government Department, submitted a hand-written note to the Chairman stating that she had been asked on telephone by the Director, Local Government, Punjab that no action beyond presentation of the firms be taken by the Trust. 3.11. The Chairman, however, opened the financial bids on 17th May, 2005 at 5 PM which apparently prompted the State Government to send a FAX message on the same day at 6.40 PM asking the Chairman neither to issue LOI nor hold any further proceedings until the Government framed a policy. However, on 17th May, 2005 itself without the presence of any official/officer of the Trust or State Government the Consultants evaluated the financial bids and declared M/s Today Homes and Infrastructure Private Limited as a successful bidder (in short "M/s Today Homes"). 3.12. On 18th May, 2005, the LOI was issued to M/s Today Homes by the Chairman of the Trust and the State Government was also informed. On 19th May, 2005 the Chairman of the Trust asked his Consultant to prepare an agreement to be entered into with the successful bidder. However, on 20th May, 2005 the State Government took a serious view of the action of the Chairman as to why did he open the financial bid and issue LOI despite its restraint order. 3.13. On 23rd May, 2005 the Government softened its stand and in a meeting held in the office of the Principal Secretary, Local Government Department, decided that "the draft agreement" shall be got approved from the Government and that a Senior Advocate and a Chartered Accountant would be consulted for preparing the draft agreement. Despite being present in this meeting, the Chairman of the Trust did not deem it necessary to get "the draft agreement" approved from the State Government and after obtaining opinion of a Chartered Accountant and a Senior Advocate, he executed an "agreement" with M/s Today Homes on 24th May, 2005. On the same day, i.e., 24th May, 2005, the Director, Local Government, statedly passed certain restraint orders but failed to stop the Chairman of the Trust from taking further action in the matter. In sum and substance, the agreement provided that 30% of the receipts by way of sale/lease etc. of the City Centre shall go to the kitty of the Trust whereas 70% thereof shall go to the Developer, namely, M/s Today Homes. 3.14. On 27th May, 2005, the Principal Secretary to Government of Punjab, Local Government Department, is stated to have invoked his statutory powers and passed an order thereby "annulling all the proceedings", briefly noticed above. The Chairman of the Trust is alleged to have sent his explanation on that very day with an unsuccessful request to the Principal Secretary to Government of Punjab to revoke his afore-stated order dated 27th May, 2005. 3.15. This brought the next authority in hierarchy on the scene, namely, the Minister-in-Charge who vide his order dated 18th August, 2005 "withdrew" the order dated 27th May, 2005 of the Principal Secretary to Government of Punjab. The Chairman of the Trust then executed a General Power of Attorney in favour of M/s Today Homes on 29th August, 2005 whereby the latter was authorized to transact in respect of the LCC properties including sale thereof. 3.16. On 30th August, 2005, however, vide resolution No. 147 dated 20th August, 2005 the Trust decided that the action of the Chairman regarding execution of the "agreement", issuance of "LOI" and execution of "Power of Attorney" be got approved from the State Government. The State Government appears to have had reservations regarding some of the clauses in the agreement and wanted certain amendments. However, the proposed amendments were never acted upon despite being communicated to the successful bidder by the Estate officer of the Trust. Thereafter, the Chairman of the Trust is alleged to have written a letter dated 20th June, 2006 to M/s Today Homes informing that "you may ignore the letter of the EO because the matter is being taken up with the Government". 3.17. The Media too came into picture. A TV channel is claimed to have carried out a "sting operation" in which officers of M/s Today Homes were caught accepting black money for the sale/lease of the properties of City Centre and admitting to the extent that only 30% was required to be paid in "white" and rest of the amount from the buyers was acceptable in "cash" thereby duping the Trust in respect of its 30% share in the over-all sale/lease of the LCC properties. The Print Media, namely, Hindustan Times also published a news- item on 12th September, 2006 titled as "City Centre : Punjab loosing hundreds of crores". 3.18. On 14th September, 2006, the Punjab Government acknowledged the seriousness of the allegations when it dissolved the Trust and appointed Regional Deputy Director, Department of Local Government, as Administrator of the Ludhiana Improvement Trust. Henceforth, Paramjit Singh Sivia/Sibia, the Chairman of the Trust, suffered an eclipse. 3.19. The "sting operation" and the "media reports" also prompted the State Government to direct an inquiry by the Vigilance Bureau of the State. In addition, on 6th October, 2006 a meeting was also held under the Chairmanship of the then Principal Secretary, Local Government Department, Punjab which was attended by the Administrator and other officers of the Trust as well as the executive functionaries of M/s Today Homes. The relevant extracts of the decision taken in the aforesaid meeting read as follows :- "At the very outset it was agreed to form a company (Special Purpose Vehicle) and the names of the Company mutually agreed were : a) Ludhiana City Centre Private Limited; b) LCC Private Limited; c) LCC Punjab Private Limited; d) Ludhiana City Centre Punjab Private Limited. The application for availability for the name be applied to the ROC. The constitution of the SPV Company being formed shall be in the ratio of 70-30 between Today Homes and Infrastructure Private Limited and LIT respectively. The SPV company shall be formed in accordance with RFP. Number of Directors of SPV will be decided in the next meeting. 2. A perusal of RFP revealed that the sale of City Centre Property was permissible. 3. The booking already made till date for sale and lease of built up area representing approximately 22% of the proposed super built up (salable area) shall be adjusted in the 70% share of Today Homes and Infrastructure Private Limited. In other words, all bookings made by the Company till date towards sale at the LCC will go to the account of Today Homes and will be honoured by it without any objection LIT/Government. 4. 30% out of the total area, which is the share of the LIT in the project will be taken out of the remaining 78% salable area on each floor in every building and the demarcation of the same will be done jointly by the representatives of LIT and Today Homes Infrastructure Private Limited. 5. The Today Home Infrastructure Private Limited has already deposited bank guarantee for a sum of Rs. 3.72 crores and will give an additional Bank guarantee of Rs. 8.66 crores to the LIT within one month of the 1st Board meeting of the Company being formed (SPV). 6. The Administrator Improvement Trust, Ludhiana intimated that the power of Attorney executed on 29th August, 2005 in favour of M/s Today Homes and Infrastructure Private Limited by the then Chairman, Improvement Trust, Ludhiana in respect of the Ludhiana City Centre has been revoked with immediate effect on 5th October, 2006. Since it has been agreed that the sale/lease of Ludhiana City Centre Properties made to far which approximately 22% of the total salable area, will go to the share of Today Homes and Infrastructure Private Limited, therefore, the said sales are legal and valid. A new power of Attorney for the remaining salable area of the share of Today Homes and Infrastructure Private Limited will be given separately by the Board of SPV. 7. The aforesaid decisions shall be adopted at the first board meeting of the SPV Company. 8. A detailed supplementary agreement shall be executed so as to incorporate all the mutually agreed decisions. The meeting was adjourned to 10th October, 2006 at 11.30 AM". 3.20. Mr. C.S.R. Reddy, an IPS Officer was entrusted with the vigilance inquiry, who vide his report dated 19th December, 2006 recommended "deeper probe" into the allegations. The report (photo copy of which was handed-over during the course of hearing) unmasked the losses to the tune of hundreds of crores allegedly suffered by the Trust/State Government due to moulding, tilting and execution of all the Trust's decisions to favour M/s Today Homes. 3.21. The Chief Secretary to Government of Punjab, agreed to the afore-said report and forwarded the same to the then Chief Minister, Punjab. In the changed scenario, it is alleged by the respondents that the then Chief Minister did not take any action and simply sat over the aforesaid inquiry report till he demitted the office on 3th March, 2007.
(3.) ON 23rd March, 2007 the subject FIR was registered. To be precise and brief, the allegations as contained in the FIR are that :- (i) the Chairman of the Trust (Paramjit Singh Sivia/Sibia) acted in extreme haste to implement one sided directions to give undue favours to M/s Today Homes purely for extraneous considerations and in process thereof, ignored and violated the Government decisions/instructions/directions issued to him from time to time; (ii) all the major decisions were taken by the Chairman himself and not by the Trust; (iii) as per the RFP and/or the original decision taken by the Trust, the development of the entire project was to be entrusted on BOT basis which could not authorize the successful bidder beyond leasing out the developed property for a specified period, however, having been bribed heavily, the Chairman of the Trust, contrary to the previous decisions, executed the General Power of Attorney in favour of M/s Today Homes, thereby authorizing them even to "sell" the properties of the City Centre; (iv) M/s Today Homes on the other hand, sold off the City Centre properties in black and retained 70% of the sale consideration received in cash with them thereby reducing the actual share of the Trust in the City Centre properties from 30% to 9%. In other words, M/s Today Homes was allowed to have its share to the extent of 91% contrary to the formal agreement; (v) as per the RFP and the subsequent correspondence, the entire property of the City Centre was to revert back to the Trust after the expiry of the specified period, therefore, question of authorizing M/s Today Homes "to sell" those properties could not have arisen; (vi) the aforementioned entire fraudulent exercise has caused a loss to the tune of 1500 to 3000 crores of rupees to the Trust; (vii) the manner in which the Minister-in-Charge suspended/set aside the order of the Principal Secretary thereby paving the way for the Chairman of the Trust to execute the General Power of Attorney in favour of M/s Today Homes is a clincher that his decision was actuated with mala-fide and dishonest considerations; (viii) the allegations to the aforesaid effect stood substantiated with the material collected by the National TV Channel in its sting operation as also the Print Media including Hindustan Times; (ix) the allegations of hanky-panky were duly proved in the preliminary inquiry conducted by the State Vigilance Bureau; (x) 'Source report' suggests that bribe of over Rs. 100 crores was paid to the then Chief Minister, Punjab and other Government/Trust functionaries suspected to be involved in the scam. ;