Criminal Writ Petition No. 570 of 2011. Case: Adarsh Co-operative Housing Society Limited Vs Union of India and Ors. High Court of Bombay (India)
| Case Number | Criminal Writ Petition No. 570 of 2011 |
| Counsel | For Petitioner: V. A. Thorat, Sr. Counsel, S. L. Maneshinde, Saket Mane i/b. Ms. Vidhi Partners, Advs. and For Respondents: D. J. Khambatta, Addl. Solicitor General, D. N. Salvi, Afroz Shaha, C. S. Damne, P. A. Pol, Public Prosecutor |
| Judges | Mrs. Ranjana Desai, J. and Ranjit More , J. |
| Issue | Criminal Procedure Code (2 of 1974) - Section 102; Constitution of India - Article 21 |
| Citation | 2012 CriLJ 520 |
| Judgement Date | July 27, 2011 |
| Court | High Court of Bombay (India) |
Judgment:
Smt. Ranjana Desai, J.
1. The petitioner is a society registered under the Maharashtra Co-operative Societies Act, 1960 (for convenience, "the petitioner-society"). Respondent 1 is the Union of India. Respondent 2 is the State of Maharashtra and respondent No. 3 is the Central Bureau of Investigation, Anti Corruption Branch (for short, "the CBI"), who is currently investigating certain matters connected with the petitioner-society and its members.
2. In this petition filed under Article 226 of the Constitution of India, the petitioner-society has, inter alia, prayed that the letter dated 31-1-2011 issued by CBI in respect of accounts of the petitioner-society maintained with the State Bank of India in Wodehouse Road Branch and Cuffe Parade Branch be quashed. By the said letter, CBI has issued a direction to the State Bank of India to stop operation of the said accounts of the petitioner-society.
3. Gist of the facts stated in the petition will have to be noted.
(a) The petitioner-society is a society registered under the Maharashtra Co-operative Societies Act, 1960. It has 102 members. The petitioner-society and its members were allotted, on occupancy basis, 6428.5 sq. meters of land owned by the Government of Maharashtra situate in the Backbay Reclamation Area in Block No. VI in Colaba, Mumbai. The petitioner-society paid a total amount of Rs. 16,33,22,292/-. It was duly granted all necessary permissions. Occupation Certificate was granted on 16-9-2010. A complaint was registered by the Ministry of Defence, Government of India with the CBI requesting the CBI to conduct enquiry about the alleged irregularities concerning the petitioner-society. Upon the complaint being received, the CBI conducted a preliminary enquiry.
(b) On 29-1-2011, the CBI registered FIR against several persons connected with the petitioner-society under Sections 120-B, 420, 468 and 471 of the Indian Penal Code, 1860 (for short, "the IPC") and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, "the P.C. Act") alleging that, the accused abused their official position, manipulated and fabricated the records to achieve their objective of getting the land allotted in favour of the petitioner-society in an illegal manner. It is further alleged that various clearances from Municipal Authorities and other State Government Authorities were taken in an illegal manner. It was alleged that the accused abused their official position and obtained for themselves and for their close relations, property rights over flats in the petitioner-society at a very low cost compared to the market value.
(c) The investigation was started. The office of the petitioner-society was searched and several documents, writings, etc. were seized. Similarly, residences of the accused were searched. The CBI seized all the documents required by the petitioner-society for operating its bank accounts such as bank passbooks, cheque books, statement of bank accounts, etc. On 31-1-2010, the CBI wrote to the State Bank of India, Wodehouse Road Branch and Cuffe Parade Branch directing them to stop operation of the said bank accounts and not to allow their operation without further instructions from the CBI. The CBI did not serve any notice on the petitioner-society prior to freezing of the said accounts. The petitioner-society came to know about the said direction issued by the CBI through a letter addressed by the State Bank of India to it on 1-2-2011. Being aggrieved by this action of the CBI, the petitioner-society has approached this Court.
4. We have heard Mr. Thorat, learned senior counsel appearing for the petitioner-society and Mr. Khambatta, learned Additional Solicitor General appearing for respondents 1 and 3. We have perused the affidavit-in-reply of Mr. Ravindra Singh, Addl. Superintendent of Police, CBI, dated 15-3-2011 and affidavit-in-rejoinder and additional affidavit of Lt. (Commander) (Retd.) G.S Grewal. We have also carefully perused the written submissions filed by the petitioner-society and the CBI.
5. Mr. Thorat, learned senior counsel submitted that the unlawful and unjust freezing of accounts of the petitioner-society must be set aside. Counsel submitted that it is alleged in the FIR that 13 persons who are members of the petitioner-society conspired with each other with the intention to illegally get land allotted in its favour. The period during which the offences are alleged to have been committed is prior to 2004. The amount lying deposited in the petitioner-society's two accounts in the State Bank of India have been deposited on or about 1-11-2010 in the form of contribution from the members of the petitioner-society for the purpose, inter alia, of meeting the expenses of litigation initiated against the petitioner-society. Thus, ex facie, there is no connection between the said amount and the alleged offences.
6. Counsel further submitted that the petitioner-society is a society registered under the Maharashtra Co-operative Societies Act, 1960. It is a separate and legal entity. It is statutorily required to open bank account so as to discharge its financial commitments through its operation. It is required to make payments towards (a) security agencies for the purpose of security of its building and compound, (b) maintenance of building and its precincts. The building has a lift. If it is not maintained, it will become junk, (c) pending invoices of contractors and other service providers who have rendered their service towards construction of the building, (d) payment towards advocates and counsel engaged by the petitioner-society in various litigations concerning the petitioner-society, (e) salary of the staff of the petitioner-society and (f) payment of statutory dues. Due to the freezing of its accounts, the petitioner-society has not been able to make the above payments.
7. Counsel further submitted that freezing of the accounts has caused injustice to the petitioner-society. It is deprived of its right to engage a lawyer of its choice. There is thus violation of its fundamental rights guaranteed by the Constitution of India under Articles 14, 19 and 21. In this connection, counsel relied on the judgments of the Supreme Court in Madhav Hayawadanrao Hoskot v. State of Maharashtra, AIR 1978 SC 1548, Maneka Gandhi v. Union of India, AIR 1978 SC 597 and Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna AIR 1979 SC 1369. Counsel pointed out that the petitioner-society had addressed a letter to the bank requesting it to allow it to open a new account, however, permission was denied.
8. Counsel submitted that the CBI has not collected any material against the petitioner-society to establish causal connection between the funds deposited in its bank accounts and the alleged offence. The only evidence is found in paragraphs 12 and 13 of the affidavit of Mr. Singh, where it is stated that this amount would be utilized to tamper with the evidence which...
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