Full Judgment Text
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 14551456 OF 2021
STATE OF ODISHA …Appellant
Versus
PRATIMA MOHANTY ETC. …Respondents
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court of Orissa
dated 04.09.2019 passed in Criminal Miscellaneous
Application No.3177 of 2017 and Criminal Miscellaneous
Application No.4804 of 2015 by which the High Court has
allowed the said applications under Section 482 of Cr.P.C.
and has quashed the criminal proceedings against the
private respondents herein original accused Nos. 4, 5 and
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2021.12.11
16:22:02 IST
Reason:
3 – Smt. Pratima Mohanty, Shri Prakash Chandra Patra and
1
Shri Rajendra Kumar Samal, the State of Odisha has
preferred the present appeals.
2. That an FIR was lodged by the Deputy Superintendent
of Police, Vigilance, Vigilance Cell Unit Office, Bhubaneswar
before the Superintendent of Police, Vigilance, Bhubaneswar
Division, Bhubaneswar alleging inter alia that on
preliminary enquiry it was found that certain public
servants occupying crucial positions in Bhubaneswar
Development Authority (hereinafter referred to as ‘B.D.A.’)
and in the Housing and Urban Development Department,
Government of Odisha (hereinafter referred to as, ‘H.&U.D.
Deptt.’) surreptitiously distributed prime plots in
Commercial Complex District Centre, Chandrasekharpur,
Bhubaneswar. It was alleged that in pursuance of the
criminal conspiracy and by abusing their official positions,
the officials of the B.D.A. and of the H.&U.D. Deptt.,
Government of Odisha, surreptitiously distributed prime
plots. That at the relevant time the original accused No.4
Smt. Pratima Mohanty was serving as Steno to Vice
Chairman, B.D.A. Original accused No.5 Shri Prakash
Chandra Patra was serving as Jr. Assistant Allotment
2
Section, B.D.A and original accused No.3 Shri Rajender
Kumar Samal was the Dealing Assistant, Allotment Section
II, B.D.A. and Personal Assistant to Minister, Housing and
Urban Development (original accused No.6). Apart from the
criminal conspiracy raised by all the accused persons it was
further alleged that there was no advertisement in providing
opportunity to general public regarding availability of B.D.A.
plots for sale and their sale prices. It was alleged that
keeping the general public in dark, the public servants in
B.D.A. (accused) who had access to such information as
insiders, distributed the prime plots among themselves or
their relatives and that too at minimal rates as compared to
the prevalent rates in the area and thereby causing undue
pecuniary advantage to the allottees and corresponding loss
to the B.D.A. and the public exchequer without any public
interest.
2.1 It was further alleged that the wrongful loss caused to
the B.D.A. was to the tune of Rs.30,27,849.80 and
Rs.71,57,055.00. Therefore, it was alleged that all the
accused persons have committed the offences under Section
120B IPC and Section 13(2) read with Section 13(1)(d) of the
3
Prevention of Corruption Act, 1988 (hereinafter referred to
as ‘the Act’). The FIR was numbered as PS Case No.31 of
2005. Since all the accused persons were Government
servants working in B.D.A., Bhubaneswar, sanction orders
for prosecution were obtained. After conclusion of the
investigation, the investigating agency filed the chargesheet
against all the accused persons along with the then
Minister, H.&U.D. Deptt. on the accusation that they had
entered into criminal conspiracy and committed criminal
misconduct by abusing their official position showing undue
official favour to their relatives and allowed illegal pecuniary
advantage to the allottees in allotting 10 plots. As a result,
B.D.A. sustained huge loss and thereby making the accused
liable for the offences under Section 13(2) read with Section
13(1)(d) of the Act and Section 420 read with Section 120B
IPC. Five accused namely Shri Bibhuti Bhushan Ray, Shri
Parsuram Biswal, Smt. Pratima Mohanty, Shri Rajendra
Kumar Samal and Shri Prakash Chandra Patra approached
the High Court by way of Criminal Miscellaneous
Applications Nos.3177 of 2017 and 4804 of 2015 and
4
prayed to quash the criminal proceedings against them in
exercise of powers under Section 482 Cr.P.C.
2.2 By impugned common judgment and order the High
Court has partly allowed the aforesaid applications and has
quashed the criminal proceedings against Smt. Pratima
Mohanty (original accused No.4), Shri Prakash Chandra
Patra (original accused No.5) and Shri Rajendra Kumar
Samal (original accused No.3) mainly on the ground that the
said accused have not dealt with the allotment file in any
manner and there is no material that any of these accused
had influenced any coaccused or any officer of B.D.A. or
H.&U.D. Deptt. for getting the plots illegally in favour of
their family members. It was also further observed that
there is no material on record that these accused acted with
a preconcert mind and they were in criminal conspiracy
with the other coaccused to get the vacant plots.
2.3 Feeling aggrieved and dissatisfied with the impugned
common judgment and order passed by the High Court
quashing the criminal proceedings against the private
respondents herein original accused Nos.4, 5 and 3 for the
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offences under Section 13(2) read with Section 13(1)(d) of
the Act and Section 420 read with Section 120B IPC, the
State has preferred the present appeals.
3. Learned Counsel appearing on behalf of the appellant –
State has vehemently submitted that in the present case the
High Court has erred in quashing the criminal proceedings
for the offences under Section 13(2) read with Section 13(1)
(d) of the Act and Section 420 read with Section 120B IPC in
exercise of powers under Section 482 Cr.P.C.
3.1 It is submitted that while quashing the criminal
proceedings against the respondents – accused the High
Court has exceeded its jurisdiction vested under Section
482 Cr.P.C.
3.2. It is submitted that the High Court has not at all
appreciated and considered the fact that at the stage of
considering the application under Section 482 Cr.P.C., the
minute details of the case are not required to be gone into at
all. It is submitted that in the present case it was found
that the allotment of the 10 plots were made by the accused
in connivance with each other arbitrarily and the plots were
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allotted to the relatives of the accused – public servants. It
is submitted that no advertisement was issued by the
B.D.A. inviting the applications from intending purchasers.
The accused – officers deliberately concealed the matter
from the general public and thus avoided competition. It is
submitted that it was found that on the undated
applications the plots were allotted to the relatives of the
accused herein and public servants. It is submitted that
therefore, the First Information Report was filed by the
Vigilance Cell against the accused for the aforesaid offences.
It is submitted that after a thorough investigation a charge
sheet has been filed before the learned Special Judge
(Vigilance), Bhubaneswar. It is submitted that having found
prima facie case and being satisfied that a case for the
offences under Section 13(2) read with Section 13(1)(d) of
the Act and Section 420 read with Section 120B IPC was
made out, the learned Special Judge (Vigilance),
Bhubaneswar has taken cognizance. It is submitted
therefore the High Court ought not to have exercised the
powers under Section 482 Cr.P.C. and not ought to have
quashed the criminal proceedings.
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3.3 It is submitted that as such the High Court quashed
the criminal proceedings by scrutinising the FIR/material
on record in detail as if the High Court was conducting a
mini trial which is not permissible at the stage of exercising
the powers under Section 482 Cr.P.C. It is submitted that
the aforesaid approach is wholly impermissible as per the
law laid down by this Court in a catena of decisions.
3.4 It is further submitted that even otherwise while
quashing the criminal proceedings the High Court has not
at all appreciated and considered the fact that the allegation
was of hatching a criminal conspiracy by the public
servants who all were connected one way or the other with
allotment of the plots in the discretionary quota and that
the allegations were for the offences under Section 120B
IPC. It is submitted that the High Court by the impugned
judgment and order has quashed the criminal proceedings
mainly by observing that the respondents accused have
not dealt with the allotment file in any manner and that
there is no material that any of the respondents accused
herein influenced any coaccused or any officer of B.D.A. or
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H.&U.D. Deptt. for getting the plots illegally in favour of
their family members. It is submitted that the aforesaid
aspects are required to be considered, established and
proved at the time of trial. It is submitted that only a prima
facie case is required to be considered at this stage and it is
to be considered whether any prima facie case is made out
for the offences alleged or not. It is submitted that in the
present case there are specific allegations of favouritism and
misusing the powers in allotting the plots to the family
members and that a huge loss has been caused to the
B.D.A. and the public exchequer. It is specifically alleged
that relatives of the respondents – accused and other co
accused public servants, pursuant to a conspiracy,
submitted applications on plain papers (not in the form
prescribed in the brochure) and even some of the
applications were undated. It is submitted that it has been
found that the allotment of the 10 plots were made
arbitrarily and the respondents – accused got the plots
allotted to the family members at throw away prices. It is
urged that the High Court has erred in quashing the
criminal proceedings against the respondents accused for
9
the serious allegations of corruption while allotting 10 plots
arbitrarily to their family members by hatching the criminal
conspiracy.
4. Learned counsel appearing on behalf of the
respondents – original accused Nos. 4, 5 and 3 has
vehemently submitted that in the facts and circumstances
of the case and having found that (i) the respondents
accused have no role in the fixation of price of 10 vacant
plots; (ii) the respondents – accused have not dealt with the
allotment file in any manner; (iii) there is no material that
any of the three accused influenced any coaccused or any
officer of B.D.A. or H.&U.D. Deptt. for getting the plots
illegally in favour of their family members, the High Court
has rightly quashed the criminal proceedings against them.
It is submitted that having observed so the High Court has
rightly quashed the criminal proceedings against the
respondents – accused in exercise of its powers under
Section 482 Cr.P.C.
4.1 It is submitted that the High Court on appreciation of
the material on record which was part of the chargesheet
10
has quashed the criminal proceedings and therefore the
same may not be interfered with by this Court.
5. We have heard learned counsel for the respective
parties at length.
6. At the outset, it is required to be noted that by the
impugned judgment and order the High Court in exercise of
its powers under Section 482 Cr.P.C. has quashed the
criminal proceedings for the offences under Section 13(2)
read with Section 13(1)(d) of the Act and Section 420 read
with Section 120B IPC. From the impugned judgment and
order passed by the High Court, it appears that the High
Court has entered into the merits of the allegations and has
conducted the minitrial by weighing the evidence in detail
which, as such, as observed and held by this Court in a
catena of decisions is wholly impermissible. As held by this
Court in the case of State of Haryana And Ors. vs Ch.
Bhajan Lal And Ors., AIR 1992 SC 604, the powers under
Section 482 Cr.P.C. could be exercised either to prevent an
abuse of process of any court and/or otherwise to secure
the ends of justice. In the said decision this Court had
11
carved out the exceptions to the general rule that normally
in exercise of powers under Section 482 Cr.P.C. the criminal
proceedings/FIR should not be quashed. Exceptions to the
above general rule are carved out in para 102 in Bhajan Lal
(supra) which reads as under:
“102. In the backdrop of the interpretation of
the various relevant provisions of the Code
under Chapter XIV and of the principles of
law enunciated by this Court in a series of
decisions relating to the exercise of the
extraordinary power under Article 226 or the
inherent powers under Section 482 of the
Code which we have extracted and
reproduced above, we give the following
categories of cases by way of illustration
wherein such power could be exercised either
to prevent abuse of the process of any court
or otherwise to secure the ends of justice,
though it may not be possible to lay down
any precise, clearly defined and sufficiently
channelized and inflexible guidelines or rigid
formulae and to give an exhaustive list of
myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in their
entirety do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order
12
of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute
only a noncognizable 42 PART E offence, no
investigation is permitted by a police officer
without an order of a Magistrate as contemplated
under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
the accused.
(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the
concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.”
13
6.1 Looking to the allegations in the present case against
the respondents – accused and considering the fact that
chargesheet has been filed by the Vigilance Cell after a
thorough investigation, it cannot be said that the case falls
within any of the exceptions as carved out by this Court in
para 102 in the case of Bhajan Lal (supra). It cannot be
said that the criminal proceedings initiated against the
respondents – accused are an abuse of process of any court.
On the contrary, the allegations are an instance of abuse of
the powers with a mala fide intention and allotment of the
plots to the family members by hatching a criminal
conspiracy and to allot the plots to the family members at
throw away price causing loss to the B.D.A. and the public
exchequer.
6.2 It is trite that the power of quashing should be
exercised sparingly and with circumspection and in rare
cases. As per settled proposition of law while examining an
FIR/complaint quashing of which is sought, the court
cannot embark upon any enquiry as to the reliability or
genuineness of allegations made in the FIR/complaint.
14
Quashing of a complaint/FIR should be an exception rather
than any ordinary rule. Normally the criminal proceedings
should not be quashed in exercise of powers under Section
482 Cr.P.C. when after a thorough investigation the charge
sheet has been filed. At the stage of discharge and/or
considering the application under Section 482 Cr.P.C. the
courts are not required to go into the merits of the
allegations and/or evidence in detail as if conducing the
minitrial. As held by this Court the powers under Section
482 Cr.P.C. is very wide, but conferment of wide power
requires the court to be more cautious. It casts an onerous
and more diligent duty on the Court.
6.3 In the present case the allegations were with respect to
allotment of 10 plots which were required to be allotted
under the discretionary quota. It is not in dispute that at
the relevant time the respondents – accused were connected
with the Department concerned with regard to allotment of
the plots directly or indirectly. Accused No.4 Smt. Pratima
Mohanty was serving as Steno to ViceChairman, B.D.A. As
per the case of the prosecution an undated application for
allotment of plots on plain paper was received from Shri
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Pradyumna Kumar Mohanty, brother of the accused Smt.
Pratima Mohanty. It is also the case on behalf of the
prosecution that though the plot was applied in the name of
her brother, after the allotment of the plot she is in
possession of the same. So far as accused No.5 – Shri
Prakash Chandra Patra is concerned, as per the case on
behalf of the prosecution, an application on plain paper for
allotment of plot of Ms. Rajalaxmi Samal, sisterinlaw of the
respondent – Shri Prakash Chandra Patra (accused No.5)
was forwarded by the Minister of Housing Urban
Development – Mr. Samer Dey (accused No.6) to Shri P.K.
Pattanaik, Secretary, B.D.A. It is noted that at the relevant
time the said accused was working as Jr. Assistant,
Allotment Section, B.D.A. Pursuant to the aforesaid
application the sisterinlaw of the said accused has been
allotted a plot. So far as accused No.3 Rajendra Kumar
Samal is concerned, as per the case of the prosecution and
as alleged, an application was made for allotment of plot in
favour of his wife who was Dealing Assistant, Allotment
Section II, B.D.A. and Personal Assistant to Minister,
Housing and Urban Development. It is noted that even the
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then Minister is the original accused No.6. As per the
allegation the application was without any date and on the
basis of such undated application, the plot has been allotted
in favour of his wife.
7. Therefore, considering the aforesaid it cannot be said
that the criminal proceedings against the respondents –
accused were in any way an abuse of process of law and/or
the Court. The allegations against the respondents –
accused are very serious including hatching a criminal
conspiracy in allotment of 10 plots in the discretionary
quota arbitrarily and to their own family members/relatives.
There are specific allegations with respect to huge loss
caused to the B.D.A and the public exchequer, as according
to the prosecution the plots were allotted at throw away
prices. All these aspects are required to be considered at
the stage of trial and not while considering the application
under Section 482 Cr.P.C.
8. At this stage, the decision of the Karnataka High Court
in the case of K. Raju vs. Bangalore Development
Authority in Writ Petition No.11102 of 2008 decided on
17
15.12.2010 dealing with a somewhat similar situation with
respect to the allotment of plots in discretionary quota is
required to be referred to. In that case also it was a case of
allotment of the plots illegally and arbitrarily in the
discretionary quota. Speaking from the Bench Justice S.
Abdul Nazeer, J. as he then was has observed and held as
under:
“It is well established that a public body
invested with statutory powers has to take care
not to exceed or abuse its powers. It must act
within the limits of authority committed to it.”
“31. BDA is the custodian of public
properties. It is not as free as an individual in
selecting the recipients for its largess. For
allotment of the properties, a transparent, and
objective criteria/procedure has to be evolved
based on reason, fair play and nonarbitrariness.
In such action, public interest has to be the
prime guiding consideration. In Ramana
Dayaram Shetty v. The International Airport
Authority of India, AIR 1979 SC 1628, the Apex
Court has held that it must therefore be taken to
be the law that even in the matter of grant of
largesses including award of jobs, contracts,
quotas, licences, the Government must act in fair
and just manner and any arbitrary distribution of
wealth would violate the law of land. In Common
Cause, A Registered Society v. Union of India,
(1996) 6 SCC 530, the Apex Court has held as
under
The Government today in a welfare State
provides large number of benefits to the citizens.
It distributes wealth in the form of allotment of
18
plots, houses, petrol pumps, gas agencies,
mineral leases in contracts, quotas and licences
etc., Government distributes largesses in various
forms. A Minister who is the executive head of the
department concerned distributes these benefits
and largesses. He is elected by the people and is
elevated to a position where he holds a trust on
behalf of the people. He has to deal with the
people's property in a fair and just manner. He
cannot commit breach of the trust reposed in him
by the people In Onkar Lal Bajaj and Ors. v.
Union of India, (2003) 2 SCC 673, the Apex Court
has summarised the cardinal principles of
governance, which is as follows:
The expression "public
35.
interest" or "probity in governance"
cannot be put in a straitjacket. "Public
interest" takes into its fold several
factors. There cannot be any hardand
fast rule to determine what is public
interest. The circumstances in each
case would determine whether
government action was taken in public
interest or 02122021 (Page 14 of 23)
www.manupatra.com Hon'ble Mr.
Justice M.R. Shah was taken to
uphold probity in governance.
36. The role model for governance
and decision taken thereof should
manifest equity, fair play and justice.
The cardinal principle of governance in
a civilized society based on rule of law
not only has to base a transparency
but must create an impression that the
decision making was motivated on the
consideration of probity. The
Government has to rise above the
nexus of vested interests and nepotism
and eschew windowdressing. The act
19
of governance has to be withstand the
test of judiciousness and impartiality
and avoid arbitrary or capricious
actions. Therefore, the principles of
governance has to be tested on the
touchstone of justice, equity and fair
play and if the decision is not based on
justice, equity and fair play and has
taken into consideration other matters,
though on the face of it, the decision
may look legitimate but as a matter of
fact, the reasons are not based on
values but to achieve popular accolade,
that decision cannot be allowed to
operate.”
8.1 It is further observed after referring to the decision of
this Court in the case of Common Cause, A Registered
Society (supra) that if a public servant abuses his office
whether by his act of omission or commission, and the
consequence of that is injury to an individual or loss of
public property, an action may be maintained against such
public servant. It is further observed that no public servant
can arrogate to himself powers in a manner which is
arbitrary. In this regard we wish to recall the observations
of this Court as under:
“The concept of public accountability and
performance of functions takes in its ambit,
proper and timely action in accordance with law.
Public duty and public obligation both are
20
essentials of good administration whether by the
State or its instrumentalities.” [See
Delhi Airtech
Services (P) Ltd. Vs. State of U.P., (2011) 9
SCC 354 ]
“The higher the public office held by a
person the greater is the demand for rectitude on
his part.” [See Charanjit Lamba Vs. Army
Southern Command, (2010) 11 SCC 314 ]
“The holder of every public office holds a
trust for public good and therefore his actions
should all be above board.” [See Padma Vs.
]
Hiralal Motilal Desarda, (2002) 7 SCC 564
“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 powers
so vested in him are meant to be exercised for
public good and promoting the public interest.
This is equally true of all actions even in the field
of contract. Thus, every holder of a public office is
a trustee whose highest duty is to the people of
the country and, therefore, every act of the holder
of a public office, irrespective of the label
classifying that act, is in discharge of public duty
meant ultimately for public good.” [See Shrilekha
Vidyarthi (Kumari) Vs. State of U.P., (1991) 1
]
SCC 212
“Public authorities should realise that in an
era of transparency, previous practices of
unwarranted secrecy have no longer a place.
Accountability and prevention of corruption is
possible only through transparency.” [See ICAI
Vs. Shaunak H. Satya, (2011) 8 SCC 781 ]
21
Therefore, action has to be initiated against the
officials who are prima facie responsible for the illegality in
the allotment of the plots to the relatives and/or family
members resulting in huge loss to the B.D.A. and the public
exchequer.
9. While quashing the criminal proceedings the High
Court has not at all adverted to itself the aforesaid aspects
and has embarked upon an enquiry as to the reliability and
genuineness of the evidence collected during the
investigation as if the High Court was conducting the mini
trial. Therefore, as such the impugned judgment and order
passed by the High Court quashing the criminal
proceedings against the respondents herein original
accused Nos. 4, 5 and 3 – Smt. Pratima Mohanty, Shri
Prakash Chandra Patra and Shri Rajendra Kumar Samal is
unsustainable, both, in law and/or facts and the same
deserves to be quashed and set aside.
10. In view of the above and for the reasons stated above
present appeals succeed. Impugned common judgment and
order passed by the High Court dated 04.09.2019 passed in
22
Criminal Miscellaneous Application No.3177 of 2017 and
Criminal Miscellaneous Application No.4804 of 2015 are
hereby quashed and set aside in so far as quashing the
criminal proceedings against original Accused Nos.4, 5 & 3
is concerned.
Respondent Nos.4, 5 & 3 to face trial along with other
coaccused.
Present Appeals are accordingly allowed.
11. Before parting we may observe that now the day has
come to do away with allotment of government largess on
the basis of discretionary quota as this inevitably leads to
corruption, nepotism and favouritism. Government and/or
the public authorities like B.D.A. are the custodian of public
properties. Allotment of public properties must be
transparent and has to be fair and nonarbitrary. In such
matters public interest only has to be the prime guiding
consideration. The aforesaid principle is in order to get the
best or maximum price so that it may serve the public
purpose and public interest so as to avoid loss to the
authority and/or the public exchequer. The allotment of
plots in the discretionary quota cannot be at the whims of
23
the persons in power and/or the public servants who are
dealing with the allotment of plots in the discretionary
quota.
When a democratic government in exercise of its
discretion selects the recipients for its largess, then
discretion should be exercised objectively, rationally,
intelligibly, fairly and in a nonarbitrary manner and it
should not be subjective and according to the private
opinion and/or the whims and fancies of the persons in
power and/or the public servants. Even if guidelines are
issued to be followed while allotment of the plots under the
discretionary quota and it is found that many a time they
are hardly followed or are manipulated to suit the particular
circumstances. Therefore, the best thing is to do away with
such discretionary quota and allotments of the public
properties/plots must be through public auction by and
large. Even in the case where the policy decision is taken to
allot the plots to a particular class – downtrodden class etc.
in that case also the guidelines must be strictly followed and
as observed hereinabove the allotment must reflect the fair
24
play and nonarbitrariness and should have objective,
criteria/procedure.
……………………………….J.
[M.R. SHAH]
NEW DELHI; ……………………………….J.
DECEMBER 11, 2021. [B.V. NAGARATHNA]
25