Shailesh Ramanlal Mahimtura Vs. The State of Maharashtra - Court Judgment

SooperKanoon Citationsooperkanoon.com/1174852
CourtMumbai High Court
Decided OnSep-12-2014
Case NumberCriminal Application No. 267 of 2014
JudgeTHE HONOURABLE MRS. JUSTICE REVATI MOHITE DERE
AppellantShailesh Ramanlal Mahimtura
RespondentThe State of Maharashtra
Excerpt:
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constitution of india - article 154 read with article 162 - prevention of corruption act, 1988 - section 2(c)(viii), section 7, section 12, section 13(c)(d) read with section 13(2) – maharashtra regional and town planning act, 1966 – article 54, section 146 - complaint for alleged corruption - charge sheet filed - cognizance of offence - applicant, running a company was appointed on a committee constituted by government - it is not in dispute that, as a member of said high rise committee, a complaint was filed against applicant with anti corruption bureau, which registered a case as against applicant alleging offences punishable under sections 7, 12, 13(c)(d) r/w section 13(2) of the act, 1988 and after investigation, filed a charge-sheet as against applicant - applicant.....
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1. rule. rule made returnable forthwith with the consent of the parties and taken up for final disposal. 2. by this application, the applicant has impugned the order dated 17th january, 2014 passed by the learned special judge (prevention of corruption act), mumbai in special case no. 90/2010, by which the applicant's application seeking quashing of the criminal proceedings, instituted against him under the prevention of corruption act, 1988 (`pc act'), came to be rejected. 3. the short question that arises for determination in the present petition is, whether the applicant can be termed as a 'public servant' within the meaning of section 2(c)(viii) of the prevention of corruption act (hereinafter referred to as the 'pc' act), in the facts of the present case. 4. the applicant is stated.....
Judgment:

1. Rule. Rule made returnable forthwith with the consent of the parties and taken up for final disposal.

2. By this application, the applicant has impugned the order dated 17th January, 2014 passed by the learned Special Judge (Prevention of Corruption Act), Mumbai in Special Case No. 90/2010, by which the applicant's application seeking quashing of the criminal proceedings, instituted against him under the Prevention of Corruption Act, 1988 (`PC Act'), came to be rejected.

3. The short question that arises for determination in the present petition is, whether the applicant can be termed as a 'public servant' within the meaning of Section 2(c)(viii) of the Prevention of Corruption Act (hereinafter referred to as the 'PC' Act), in the facts of the present case.

4. The applicant is stated to be a highly qualified and renowned Structural Engineer with expertise of three decades in the said field. He is also stated to have been professionally trained in space analysis and finite element analysis and to have completed an intensive course in project management in conservation repairs targeted towards restoration of heritage structures. It is stated that he is running a company by the name M/s. Mahimtura Consultants Pvt. Ltd., of which he is the Managing Director and that the said company is providing consultancy services throughout India. It is not in dispute, that considering the applicant's expertise in his field, as a structural engineer, the applicant was appointed on a Committee constituted by the Government of Maharashtra i.e. the High Rise Committee pursuant to a Government Resolution (`GR') of 2007. It is not in dispute that, as a member of the said High Rise Committee, a complaint came to be filed by one, Pankaj Goshar as against the applicant with the Anti Corruption Bureau, Worli, Mumbai. It is also not in dispute, that pursuant to the complaint, the Anti Corruption Bureau registered a case as against the applicant alleging offences punishable under Sections 7, 12, 13(c)(d) r/w Section 13(2) of the PC Act and that after investigation, filed a charge-sheet as against the applicant.

5. A few facts as are necessary to decide the present controversy are as under:

In the year 2004 i.e. on 28th July, 2004 for the first time, the Government of Maharashtra issued a Government Resolution for the purpose of constituting a Technical Committee to scrutinise development proposals of all the buildings, having height more than 70 meters and that experts in the field of structural engineering, soil mechanics, architecture, environmental engineering came to be included as members of the Technical Committee. Accordingly, the Technical Committee was appointed by a Government Resolution under the Chairmanship of a retired Judge i.e. the former Chief Justice of the Tamil Nadu High Court. In the said Technical Committee, four members came to be appointed by names and two members came to be appointed by virtue of their office. The tenure of the said Committee was for three years and which was to be reconstituted thereafter. The terms of the said Committee were advisory in nature and it was open for the Municipal Commissioner to overrule the said recommendations of the Committee. The present applicant was not a member of the Technical Committee which was appointed in the year 2004. After three years, the Government of Maharashtra vide GR dated 27th July, 2007 reconstituted a new Technical Committee as the term of the earlier Committee was to expire on 28th July, 2007. In the newly appointed Technical Committee, one former High Court Judge was appointed as its Chairman and the present applicant was appointed as a member by name along with four other persons. As far as the non-official members of the Committee were concerned, i.e. the Chairman and the applicant, they were to receive an honorarium as would be decided by the Commissioner. The said Committee was appointed for a period of three years i.e. from 28th July, 2007 to 28th July, 2010. It is during this tenure of three years, that a complaint came to be filed as against the present applicant by one, Pankaj Dhanji Goshar, alleging therein that the applicant had demanded money in order to obtain clearance for the high rise building. The said complaint was filed with the Anti Corruption Bureau i.e. the respondent No.2 and the complaint came to be registered under the Prevention of Corruption Act, 1988.

6. Mr.Amit Desai, the learned Senior Counsel for the petitioner contended that a perusal of the GR dated 28th July, 2004 would show the purpose for which the High Rise Committee was constituted. He submitted that in the GR dated 28th July, 2004, four persons were appointed by names on the High Rise Committee, in view of their expertise along with two Government Officers. (The applicant was not a member of the Committee appointed under the GR of 2004) The tenure of the said Committee was three years, after which the Committee was to be reconstituted. He contended that in the reconstituted Committee after three years i.e. vide GR dated 27th July, 2007, the present applicant came to be appointed. He contended that the appointment of the applicant on the said Committee was by name, in view of his expertise as a structural engineer; the tenure of the Committee was limited i.e. for a period of three years; the recommendations made by the Committee were advisory in nature, not binding on the Commissioner; and the applicant was to be paid an honorarium for the same i.e. for the meetings he attended from the fund created by the Commissioner. He submitted that a perusal of the two GR's. i.e. the first Committee appointed vide GR of 2004 and the second Committee reconstituted vide GR of 2007, reveals that two persons came to be dropped from the Committee of 2004 and the present applicant came to be appointed as a member of the said Committee vide GR of 2007. He submitted that as the applicant was a Structural Engineer and had certain interests in certain buildings and as there was a conflict of interest, the applicant had brought the same to the notice of the Chairman of the Committee, and therefore one Mr. Jain came to be appointed in place of the present applicant in certain cases. He submitted that accordingly, an alternate arrangement was made, by appointing Mr. Jain on the said High Rise Committee, to consider proposals, where the applicant had a conflict of interest. The applicant was not appointed again, after his 3 year's tenure, which ended in July, 2010.

7. Mr. Desai, submitted that the term `office' indicates something which is of a permanent nature, dehors an individual. He submitted that (i) the High Rise Committee that was appointed for a limited period of three years, was at the discretion of the Government and could be withdrawn by them; (ii) that although the Committee was constituted by a GR, there was no provision of law, pursuant to which the said Committee came to be constituted/appointed; and (iii) that certain persons who came to be appointed on the said Committee were by name and not by designation. He further submitted that the honorarium that was to be paid to the applicant and other non-official members was from the scrutiny money deposited by the builders, architects, etc. in the Commissioner's office and not by the Government. He relied on certain documents in support of his submission to show that the honorarium was being paid out of a separate fund, created by the Municipal Commissioner for the said purpose. He further submitted that the role of the said Committee was purely recommendatory and advisory in nature and the Commissioner was not bound to accept the same and had the power to override the recommendations of the Committee. He, therefore, submitted that when the decisions of the High Rise Committee were purely advisory and recommendatory in nature, it could not be said that the applicant was `holding an office' and performing a public duty, in the strict sense. He submitted that under no circumstances, can a non-official member, be termed as a 'public servant'. He submitted that only those members who were appointed on the High Rise Committee by virtue of their designation, as heading certain government departments and were already public servants, would continue to be 'public servants'. He submitted that if the applicant is held to be 'public servant' merely because of his appointment as an expert on the Committee of the High Rise Committee, and that too in an advisory capacity, no person from the private sector would be wiling to accept such appointments. According to Mr. Desai, a false and frivolous complaint was lodged by one Pankaj Goshar as against the applicant, alleging therein, that the Applicant, being a member of the High Rise Committee had demanded gratification, to sanction or clear the proposal.

Mr. Desai relied on the following Judgments in support of his submissions:

AIR 1962 SC 1821 – R. K. Dalmia and Ors. vs. The Delhi Administration;

AIR 1975 SC 1685 – Dattatraya Narayan Patil v. The State of Maharashtra;

AIR 1975 SC 1689 – M/s. Lakmirattan Cotton Mills Co. Ltd. v. Its Workmen; AIR 1976 SC 2283 – Madhukar G. E. Pankakar v. Jaswant

Chobbildas Rajani and Ors; AIR 1976 SC 2299 – Mohinder Singh v. State of Punjab; AIR 1970 SC 694 – Kanta Kathuria v. Mank Chand Surana; (2009)

13 SCC 418 – State of Punjab v. Nirmal Kaur; (2009) 13 SCC 420 – Mathura Singh and Ors. v. State of Uttar Pradesh; (2002) 7 SCC 631 – Govt. of Andhra Pradesh and Ors. v. P. Venku Reddy.

8. Per contra, Mr. S. K. Shinde, learned Public Prosecutor submitted that no interference in the impugned order was warranted. He submitted that once a GR is issued, pursuant to the powers vested in the Executive, it is law. He submitted that Article 162 of the Constitution partakes all characteristics of law and has the power to make laws and to fill in the gaps as and when required. He relied on the definition of Article 12 of the Constitution in support of his submission. He submitted that under the provision of Section 154 of the Maharashtra Regional and Town Planning Act, 1966 (`MRTP Act'), State has complete control over the Corporation and it is pursuant to that, that the Government thought it fit to appoint a Committee for monitoring of the High Rise Buildings. He submitted that the powers under Section 154 of the MRTP Act r/w Article 162 of the Constitution would have to be read in conjunction, to show that the GR which was issued, was issued pursuant to the said powers. He submitted that the GR has been issued in public interest and considering the object as is reflected in the GR dated 28th July, 2004, that specialized persons with expertise came to be appointed. He submitted that Section 2(b) of the PC Act shows that the GR which was issued by the Government was for the benefit of the people at large and thus the Committee members were in a sense performing public duty. According to him, the applicant's appointment as a member of the said High Rise Committee would come well within the definition of Section 2(c)(viii) and hence the applicant could be termed as a 'public servant'. He relied on explanation 1 and 2 of the definition of Section 2(c)(viii) of `public servant' in support of his contention; which reads thus:-

“Explanation 1.- Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.

Explanation 2.- Wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.”

Mr. Shinde relied on the Judgment in the case of Sadashiv Krishna Sutar v. State of Maharashtra in Criminal Revision Application No. 353 of 2012 in support of his contention.

9. At the outset, it is pertinent to note that the applicant had preferred an application before the Special Court, praying therein, that a preliminary issue, as to whether the Applicant is a 'public servant' or not within the meaning of Section 2(c) (viii) of the PC Act, be decided as a preliminary issue. The learned Special Judge, Mumbai rejected the said application vide order dated 15th December, 2012. Being aggrieved by the said order, the applicant challenged the same in this Court, and this Court (Coram : R.V. More, J.) vide order dated 4th February, 2013, passed in Criminal Application No.106 of 2013, directed the learned Special Judge, Mumbai to decide the issue, whether the applicant is a 'public servant' or not as a preliminary issue, inasmuch as, if the applicant is not a public servant, then the Special Judge under the PC Act, was not competent to take cognizance of the offence punishable under the said Act. Pursuant to the said order, the learned Special Judge decided the said issue as a preliminary issue and rejected the applicant's application vide the impugned order dated 17th January, 2014.

10. Therefore, without going into the facts i.e. merits of the case, the question that is posed before this Court is, whether the present applicant can be said to be `public servant' within the meaning of Section 2(c)(viii) in the facts of the present case, in order to attract the provisions of the PC Act.

11. In order to decide the said question, it is necessary to consider all the GR's, the nature of appointment, term of appointment, nature of work, honorarium paid etc. The first GR of 28th July, 2004 by which, for the first time, a Technical Committee came to be constituted for scrutinizing development proposals of high rise buildings reads thus :

“INTRODUCTION :

High rise buildings and their impact on infrastructure and environment has been attracting public attention for the past some time. It was observed that coming up of indiscriminate high rise structures may cause adverse effect on the structural stability of adjoining buildings, due to sub-soil conditions, environmental degradation, etc. With a view to examine the overall effect of high rise buildings in Mumbai, Government in Urban Development vide its Notification No.TPB.4303/49/CR-4/03/UD-11 dated 10th January, 2003, constituted a Study Group under the Chairmanship of the Chief Secretary. The Study Group was required to examine the overall effect of high rise buildings for factors like environment, carrying capacity of roads, infrastructural service, structural stability, etc. The Study Group on 29th May, 2003 has submitted its report to the Government, which has been considered by the Government. Among other recommendations, the Study Group has recommended that a Technical Committee be appointed to scrutinise development proposals of all the buildings having height more than 70 mt and that experts in the field of structural engineering, soil mechanics, architecture, environmental engineering be included amongst the members of the Technical Committee. In the circumstances, Government is pleased to appoint a Technical Committee for scrutiny of proposals of high rise buildings having height of more than 70 mtrs.”

(emphasis supplied)

12. It is thus evident, that the GR of 2004 was issued to consider the adverse effect of high rise buildings in Mumbai. It was pursuant to a recommendation of the Study Group that the GR of 2004 came to be issued, as the Study Group had recommended that a 'Technical Committee' be appointed to scrutinise development proposals of all the buildings, having height more than 70 meters and that experts in the field of structural engineering, soil mechanics, architecture, environmental engineering be included amongst the members of the Technical Committee. It is evident from a perusal of the said GR that the tenure of the Technical Committee was to be three years and it was to be reconstituted again thereafter. The terms of reference were as follows:

“1. The Committee shall be of advisory nature and it will advise the Municipal Commissioner regarding the feasibility of development proposals that might be referred to it by the Commissioner.

2. It will be open for the Commissioner to overrule the recommendations of the Committee, after giving a proper and reasonable justification in writing. Such powers will not be delegated to any subordinate officer.

3. In specific cases, if the Chairman desires any expert from other fields may be invited for the meeting of the Committee.”

13. The non-official members were to be paid an honorarium as would be decided by the Commissioner. The first Technical Committee which was appointed, pursuant to the said GR of 2004, was headed by a retired Chief Justice of the High Court to scrutinise the proposals. Two more members came to be appointed on the said Committee by name viz. Satish Dhupelia, Structural Engineer; G. B. Choudhary, Assistant Professor, In-charge Head Structural Engineering Department, Soil Mechanic Division, Engineer in V.J.T.I, Mumbai. The other three members appointed on the said Committee were public servants and they were appointed as members of the said Committee. They were the Advisor, Maharashtra Pollution Control Board, Mumbai, the Chief Fire Officer, Municipal Corporation of Greater Mumbai; and the Chief Engineer (Development Plan), Municipal Corporation of Greater Mumbai.

14. After the term of the aforesaid Committee expired in 2007, the Government of Maharashtra again issued a GR dated 27th July, 2007 and constituted a new Technical Committee consisting of the following persons, for a period of three years with effect from 28th July, 2007 i.e Former Judge, High Court came to be appointed as its Chairman; the present applicant came to be appointed as a Structural Engineer by name, and the rest of the Committee Members were the Head of Structural Engineering Department, IIT, Mumbai; Head of Environmental Engineering Department, IIT, Mumbai; Chief Fire Officer, Municipal Corporation of Greater Mumbai and Chief Engineer (Development Plan), Municipal Corporation of Greater Mumbai. Again the terms and conditions were identical to the terms and conditions of the GR of 2004 with respect to tenure, terms of reference and the honorarium.

15. After the said term of three years came to an end on 27th July, 2010, again a new Technical Committee was constituted, vide GR of 3rd September, 2010. Again the said Technical Committee comprised of a Former Judge, High Court as its Chairman and Head of Department/Prof.Soil Mechanics, VJTI, Mumbai; HOD/Prof.Structural Engineering Department IIT, Mubmai; Scientist-in-charge, NEERI Regional Lab, Mumbai and Chief Fire Officer, MCGM, Mumbai, as its members. The said Committee was appointed for a period of 3 years and again on identical terms. It is informed by the parties, that after the expiry of the term of the aforesaid Technical Committee in 2013, no Technical Committee was constituted by the Government of Maharashtra thereafter.

16. It is thus evident from the aforesaid GR of 2007, that the applicant was appointed on the Technical Committee from 2007 to 2010; that the applicant was a non official member of the said Committee; that the terms of reference showed that the Committee was an Advisory Committee i.e. that the Committee was to give advice to the Commissioner regarding the feasibility of the development proposal referred to it by the Commissioner; that the recommendations of the Committee could be overruled by the Commissioner, after giving reasons in writing; and that the non-official members were to be paid an honorarium as decided by the Commissioner from the Scrutiny Fund of the Municipal Corporation.

17. Before adverting to the point, whether the 'applicant' can be said to be a `public servant' or not, it would also be necessary to consider the law laid down by the Apex Court in this regard. The Apex Court in the case of R. K. Dalmia (supra), while considering whether a Chartered Accountant who was appointed as an Investigator, in the said case pursuant to an order of the Central Government, could be said to be an employee of the Government, has observed in para 285 of the judgment as under:

“285. We do not see that examination of Dalmia on oath be considered to be an inquisition. Sub-Section (3) of section 33 of the Insurance Act empowers the Investigator to examine on oath any manager, managing director or other officer of the insurer in relation to his business.

Section 176 of the Indian Penal Code has no application to the examination of Dalmia under section 33 of the Insurance Act. Section 176 reads:

"Whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, as such, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be published with simple imprisonment for a term which may extent to one month, or with fine which may extend to five hundred rupees, or with both;

or, if the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with simple imprisonment for a terms which may extend to six months, or with fine which may extend to one thousand rupees, or with both;

or, if the notice or information required to be given is required by an order passed under sub-section (1) of section of the Code of Criminal Procedure, 1898, with imprisonment of either description for a terms which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

For the application of this section, it is necessary that Annadhanam, as Investigator, be a public servant. Annadhanam cannot be said to be a servant. He was not an employee of Government. He was a Chartered Accountant and had been directed by the order of the Central Government to investigate into the affairs of the Insurance Company and to report to the Government on the investigation made by him. Of course, he was to get some remuneration for the work he was entrusted with.”

(emphasis supplied)

18. Similarly, in the case of Dattatraya Narayan Patil (supra), the Apex Court was dealing with the case whether the Minister presiding over the meetings of the Advisory Committee under a Government Notification could be said to be executing or discharging his duty as public servant, has observed in para 8 as under :

“8. Under the orders of the Government, therefore, its officers including the Minister of the District were to carry out certain public duties in connection with the reviewing of the working of Zilla Parishads and Panchayat Samitis which, of course, were constituted under the statutes. The Minister, a public servant, was to be the Chairman of the Committee. The Divisional Commissioner was to be the convener of the meeting. The Deputy Commissioner (Development) of the Division concerned was to act as the Secretary. They were all public servants. Is it possible to take the view that the Divisional Commissioner or the Deputy Commissioner while performing the functions aforesaid under orders of the Government conveyed in the circular dated 5-8-1964 were performing any private functions and not public duty? Obviously it was a part of the public duty assigned to them by the Government. The duty assigned to a pubic servant by his master, be it be under a statute or by an. executive order, will assume the character of public duty, provided the duty assigned is not illegal or against public policy. Will it make any difference in the case of a Minister? In our judgment, not. The Minister is a public servant-not disputed. In accordance with the instructions issued by the Government he was to preside over the meetings of the Advisory Committee. He was doing so as a Minister and in execution and discharge of his duty as such public servant. It is no doubt true that non-official office bearers and members of the Committee could not be public servants. Non-officials appointed to a Committee constituted under a statute may, under certain circumstances, become public servants within the meaning of Section 21 of the Code; but surely non-official members of the Committee in question could not be so. Yet it is wrong to say that the officials and persons who were public servants discharging their duties as office bearers and members of the Advisory Committee were not performing any duty as such public servants. Any person who was not a public servant appointed as a Chairman of the Committee may not be a public servant because the office of the Chairman of the Advisory Committee is not such that would make him a public servant. But the matter is different when a public servant, under the executive instructions of the Government, is appointed the Chairman of the Committee.”

19. In the case of Madhukar G. E. Pankakar (supra), the Apex Court was dealing with the question as to whether a Medical Practitioner working as a panel doctor under the Employees' State Insurance Scheme (ESIS) could be said to be holding an “office of profit” under the State Government. The Apex Court held that such Medical Practitioners working as panel doctors appointed under the Employees' State Insurance Scheme do not hold “office of profit” under the State Government, so as to attract disqualification under Section 16(1)(g) of the Maharashtra Municipalities Act, 1965. The Apex Court observed in para 15 as under:

“15. The fatal sin is not that the appellant is a doctor under the ESI Corporation but that he is holding an 'office of profit' under the State Government. We may ignore provisions relating to the powers of the Corporation and turn to the rule of Government vis-a-vis private medical practitioners like the appellant. He is not a full-time employee of Government. On the other hand, he runs his own clinic. Even so, it is argued with force that Section and a fasciculus of rules framed by the State Government under Section viewed as a mini-scheme, creates offices of profit which are filled by private doctors like the appellant.”

In para 22, the Apex Court has dealt with the issue of `office of profit' and has observed as under:

“22. Back to the issue of 'office of profit'. If the position of an Insurance Medical Officer is an 'office', it actually yields profit or at least probably may. In this very case the appellant was making sizeable income by way of capitation fee from the medical services, rendered to insured employees. The crucial question then is whether this species of medical officers are holding 'office' and that 'under government.' There is a haphazard heap of case law about these expressions but they strike different notes and our job is to orchestrate them in the setting of the statute. After all, all law is a means to an end. What is the legislative and here in disqualifying holders of 'offices of profit under Government'? Obviously, to avoid a conflict between duty and interest, to cut out the misuse of official position to advance private benefit and to avert the likelihood of influencing government to promote personal advantage. So this is the mischief to be suppressed. At the same time we have to bear in mind that our Constitution mandates the State to undertake multiform public welfare and socio-economic activities involving technical persons, welfare workers, and lay people on a massive scale so that participatory government may prove a progressive reality. In such an expanding situation can we keep out from elective posts at various levels many doctors, lawyers, engineers and scientists, not to speak of an army of other non-officials who are wanted in various fields, not as full-time government servants but as part-time participants in people's projects sponsored by government? For instance, if a National Legal Services Authority funded largely by the State comes into being, a large segment of the legal profession may be employed part-time in the enabling occupation of legal aid to the poor. Doctors, lawyers, engineers, scientists and other experts may have to be invited into local bodies, legislatures and like political and administrative organs based on election if these vital limbs of representative government are not to be the monopoly of populist politicians or lay members but sprinkled with technicians in an age which belongs to technology. So, an interpretation of 'office of profit' to cast the net so wide that all our citizens with specialities and knowhow are inhibited from entering elected organs of public administration and offering semi-voluntary services in para-official, statutory or like projects run or directed by Government or Corporations controlled by the State may be detrimental to democracy itself. Even athletes may hesitate to come into Sports Councils if some fee for services is paid and that proves their funeral if elected to a panchayat. A balanced view, even if it involves 'judicious irreverence' to vintage precedents, is the wiser desideratum.”

(emphasis supplied)

20. In the case of Kanta Kathuria (supra), the question before the Apex Court was whether the appointment of an advocate as a Special Government Pleader to conduct a particular case will come under the meaning of the term `office' and the Article 191 (1)(a) of the Constitution.

The Constitution Bench of the apex court while dealing with the said question, observed in para 27 as under:

“27. It seems to us that the High Court erred in holding that the-appellant held an office. There is no doubt that if her engagement as Special Government Pleader amounted to appointment to an office, it would be an office of profit under the State Government of Rajasthan. The word 'office' has various meanings and we have to see which is the appropriate meaning to be ascribed to this word in the context. It seems to us that the words 'its holder' occurring in Article 191 (1) (a), indicate “that there must be an office which exists independently of the holder of the office”. Further, the very fact that the Legislature of the State has been authorised by Article 191 to declare an office of profit not to disqualify its holder, contemplates existence of an office apart from its holder. In other words, the Legislature of a State is empowered to declare that an office of profit of a particular description or name would not disqualify its holder and not that a particular holder of an office of profit would not be disqualified.”

21. In the case of State of Punjab v. Nirmal Kaur (supra), the question before the Apex Court was whether the respondent, who was running a coaching centre, could be said to be a 'public servant' by virtue of the fact, that she was performing a public duty in view of Section 2(c)(viii) of the PC Act. The Apex Court in paras 3 and 5 has observed as under:

“3. The trial court relied on clauses (viii) (xi) and (xii) of Sub-clause 2(c) of the Act to hold that the charges were framed legally. The High Court held that clauses (viii) (xi) and (xii) of Sub-section of the Act have no application to the facts of the case. It was pointed out that the accused was running a coaching centre and therefore she was not performing any public duty. The framing of charge so far as Section 13 of the Act is concerned was to be quashed while the accused was to face trial for the aforesaid offences punishable under the IPC. Learned Counsel for the appellant submitted that since the accused was running a coaching centre, she was carrying on public duty.”

“5. Stand of the appellant-State is that in any event by running coaching centre, the respondent was performing public duty. The submission overlooks basic requirement of Clause (vii) of Section 2(c) which is applicable only when a public servant holds an office by which he authorized or required to perform any public duty. In the instant case it is nobody's case that the respondent was holding an office by virtue of which she was authorized to perform any public duty. That being so there is no merit in this appeal which is accordingly dismissed.”

(emphasis supplied)

22. In Narsimha Rao v. State (CBI/SPE) etc. reported in AIR 1998 SC 2120, the Apex Court has observed that:

“57. The clause relevant for our purpose is Clause (viii) whereunder "any person who holds an office by virtue of which he is authorised or required to perform any public duty" is to be treated as a public servant under the 1988 Act. The said clause postulates that the person must (i) hold an office and (ii) by virtue of that office (iii) he must be authorised or required to perform (iv) a public duty.”

It was further observed in para 65 as under:-

“65. It would thus appear that although in the Constitution the word 'office' has not been used in the provisions relating to Members of Parliament and members of State Legislature but in other parliamentary enactments relating to members of Parliament the word 'office' has been used. Having regard to the provisions of the Constitution and the Representation of the People Act, 1951 as well as the Salary, Allowances and Pension of Members of Parliament Act, 1954, and the meaning that has been given to the expression 'office' in the decisions of this Court, we are of the view that Membership of Parliament is an 'office' inasmuch as it is a position carrying certain responsibilities which are of a public character and it has an existence independent of the holder of the office. It must, therefore, be held that the Member of Parliament holds an 'office'.

23. Therefore, what emerges from the aforesaid cases is that the prosecution has to show that a person, who is charged under the Prevention of Corruption Act, 1988, was “holding an office” and was “authorised to perform a public duty” by virtue of that office.

24. The term `public servant' is defined in Section 2(c)(viii) of the PC Act, which reads thus:

“2(c)(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty.”

The word 'office' as is normally understood means "a position to which certain duties are attached, especially, a place of trust, authority or service under a constituted authority. In Mc Millan v. Guest reported in (1942) AC 561, Lord Wright has said;

“The word 'office' is of indefinite content. Its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following : “A position or place to which certain duties – are attached, especially one of a more or less public character.”

In the same case, Lord Atkin gave the following meaning:-

"an office or employment which was subsisting permanent, substantive position, which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders."

Reference to Stroud's Judicial Dictionary, Burrows on Words and Phrases and other similar law books show that the term `office' has been judicially construed in several different senses and that in each case a meaning has been assigned to it, having regard to the language used in the enactment and its object.

25. The term `public servant' is described in sub-clause (c) of Section 2. It enumerates the list of persons who would qualify as public servants. The list i.e. from (i) to (xii) itself is illustrative and by no means exhaustive. Public servants known to law are either statutory or those mentioned in Section 2(c) of the PC Act. There are local or special laws which have declared certain functionaries as public servants for the purposes of the Indian Penal Code. Such persons can be termed as 'statutory public servants'. In some cases, a person may be a public servant, though not necessarily appointed by the Government. That ofcourse, would depend on the facts of each case. Generally, a `public servant' is an authority who must be appointed by the Government or a Semi-Governmental body and be in the pay or salary of the same; and such a person is to discharge his duties in accordance with the rules and regulations made by the Government.

26. Needless to state, that when a government servant performs functions under the orders of the government, it is a part of the public duty assigned by the government to him. There also can be no dispute, about the fact that the duty assigned to a public servant by his master, either under a statute or by an executive order, will automatically assume the character of public duty, provided the duty assigned is not illegal or against public policy. Thus, official members of the Committee, who are appointed by virtue of the post they hold in the government, continue to be public servants for all purpose. What then happens to non-official members/office bearers? In certain cases, non-official members appointed to a Committee constituted under a statute, or persons appointed by a servant of the Government, may under certain circumstances, become public servants within the meaning of Section 21 of the Indian Penal Code.

The apex Court in the case of Shivnandan Sharma vs. Punjab National Bank Ltd. reported in AIR 1955 SC 404 was required to consider whether a cashier appointed by the Bank's treasurer on behalf of the Bank and paid by the Bank was a servant of the Bank. It was a case under the Industrial Disputes Act. It was held that he was. The rule of that case was that if the master employs a servant and authorises him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for cash consideration, the employees thus appointed by the servant would be, equally with the servant, servants of the master. In the facts of the present case, the appellant has not been employed by a servant of the Government who is authorised to employ servants for doing some service for the Government nor is he paid out of Government revenues. No doubt, non-payment from out of the revenues of the Government is not always a factor of any consequence but it is of some importance in the circumstances of this case.

27. What also emerges from the aforesaid Judgments is that there are certain factors which may be indicative or decisive for deciding whether or not a person 'holds an office'; (a) the power of the Government to appoint a person to an office of profit or to continue him in that office / to revoke his appointment, at their discretion; (b) payment from out of Government revenues, though payment from a source other than Government revenues may not always be a decisive factor; (c) the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf; (d) it must show subordination to the Government; (e) whether the appointment is under a Statute or any provision of law; (f) that there is an office which exists independently of the holder of the office. The aforesaid factors are only illustrative and not in any way exhaustive. There can be no hard and fast rule which can be laid down and that each case must be decided in the facts of that case.

28. The Apex Court in paras 38 and 39 of Madhukar G. E. Pankakar (supra), has observed as under:

“38. The core question that comes to the fore from the survey of the panorama of case law is as to when we can designate a person gainfully engaged in some work having a nexus with Government as the holder of an 'office of profit' under Government in the setting of disqualification for candidature for municipal or like elections. The holding of an office denotes an office and connotes its holder and this duality implies the existence of the office as an independent continuity and an incumbent thereof for the nonce.

39. Certain aspects to be elementary. For holding an office of profit under Government one need not be in the service of Government and there need be no relationship of master and servant (Gurugobinda : 1964-4 SCR 311 = (AIR 1964 SC 254). Similarly, we have to look at the substance, not the form. Thirdly, all the several factors stressed by this Court, as determinative of the holding of an 'office' under Government, need not be conjointly present. The critical circumstances, not the total factors, prove decisive. A practical view, not pedantic basket of tests, should guide in arriving at a sensible conclusion.”

29. Reliance placed by the learned Public Prosecutor, on the case of Sadashiv Krishna Sutar (supra) to the facts of the present case is completely misconceived. In that case, the Liquidator appointed under the Statue, was the Statutory Authority performing a public duty, and by virtue of the same had appointed a Manager to look into the affairs of the Society and therefore it was rightly held that when a Liquidator is appointed by the Registrar of the Cooperative Societies, the Liquidator has to ensure that the affairs of the Society are beneficially wound up and for that he has to perform all his duties to ensure that the winding up order is passed in exercise of statutory powers and that there is no criminal misconduct or any act, which is an offence under the PC Act. It was observed in para 50 of the said Judgment, as under:

“50. Once the duties of the Liquidator are to ensure beneficial winding up and towards that endeavour he is given wide powers, then, it is difficult to hold that the duties and functions discharged during the course of such beneficial winding up, are not such in which the State, the public or the community at large has no interest. A Cooperative Bank or a Cooperative Society is not meant for only its members. A Cooperative Society is set up so as to fulfill the directive principles of State Policy.”

30. Mr. S. K. Shinde, learned Public Prosecutor submitted that the applicant has been appointed by a GR, issued by the Executive and hence it partakes all characteristics of law under Article 162 of the Constitution. The learned Public Prosecutor's submission that the GR was issued pursuant to the powers under Article 154 of the MRTP Act r/w Article 162 of the Constitution, is devoid of merit. Mr.Shinde's submission that Explanation 1 and 2 to the definition of Section 2(c)(viii) also does not further his case, in any manner. The GR has not been issued in the present case, under any Statute or under any provision of law. Infact, it appears that only as the Study Team had recommended that a High Power Committee be constituted having persons with expertise from all branches, that the GR was issued. As a member of the public, considering the applicant's expertise, the applicant came to be appointed by name as the non-official member of the Committee and as such the applicant's appointment on the Advisory Committee will not tantamount to 'holding an office'. In the facts of the present case, it would be too far fetched to suggest that the applicant, who was admittedly a non-official member, appointed by name on the said Committee which was advisory in nature, is a `public servant', within the meaning of Section 2(c)(viii) of the PC Act. Reliance placed on Section 154 of the MRTP Act by the learned Public Prosecutor is completely misplaced. It is pertinent to note and cannot be lost sight of is `that under Section 146 of the Maharashtra Regional and Town Planning Act, 1966, there is a deeming provision, which makes every member and every officer and other employee of a Regional Board or Planning Authority or Divisional Authority a `public servant' within the meaning of Section 21 of the IPC. Section 4 of the MRTP Act sets out the constitution of the Regional Planning Boards. A perusal of the Section 4 would reveal that the State Government shall by notification in the official Gazette constitute a Board for the region consisting of a Chairman; the Director of Town Planning, persons appointed by State Government as are members of local authorities; persons appointed by the Government having knowledge on practical experience of matters relating to town and country planning, engineering, transport, industry, commerce, or agriculture, etc. Under Section 5, the terms of office and conditions of service or members is stipulated, etc. It is thus evident, that if there are private persons appointed on such Committees by the State Government, in view of their expertise, such private persons will be deemed to be `public servants' in view of Section 146 of the MRTP Act. A perusal of Section 154 of the MRTP Act reveals that it has no application to the facts of the present case, as it speaks about control by the State Government on the Regional Board, Planning Authority and Development Authority. The applicant, admittedly is not a member of either the Board or the Authority. Thus, the deeming fiction will also not apply to the applicant, considering the nature of his appointment. The Apex Court in the case of Madhukar G. E. Pankakar (supra), has rightly observed in para 22 that a “balance has to be struck to ensure there is no misuse of official position and at the same time people with expertise are not deterred or inhibited from taking part in State run projects etc.”

31. In the present case, the appointment of the applicant is not under any statute, but pursuant to a GR which was issued on a recommendation of a study group, that a Technical committee be appointed to scrutinize development proposal of all buildings having height more than 70 mtrs and that experts from various fields be appointed on such Committees. The applicant's appointment on the said Committee was made, keeping in mind his expertise in his field as a Structural Engineer, specifically for a period of three years. The applicant's role as a non-official-member of the Committee was purely advisory and recommendatory and that the Municipal Commissioner was under no obligation to accept the recommendation and if required, the Commissioner could override the said recommendations of the Technical Committee. Similarly, the honorarium that was being paid to the applicant for every meeting did not come from the Government but came from the scrutiny charges, which were deposited by architects, builders, etc. in a separate fund i.e. the Scrutiny fund maintained by the Municipal Commissioner's Office. The applicant was to receive honorarium contingent on the number of meetings, he attended and the site visits and not monthly. The honorarium to be paid to the Chairman was Rs. 15,000/- per month and Rs. 3,500/- for each meeting to the non-Government officials, like the applicant. The honorarium to be paid to the non-official members of the Committee was to be decided by the Commissioner. Clearly, in the facts, the applicant cannot be said to have been holding an office or be said to be in the employment of the Government. There was no permanency attached to the applicant's job, as the appointment was only for a period of 3 years. In cases, where there was a conflict of interest, one Mr. Jain was appointed on the Committee in place of the applicant, while considering certain proposals. Considering the nature of the applicant's work, the applicant did not ipso facto become a 'public servant'. Although, there may be in a sense, public duty attached to the job assigned to the applicant who was appointed as a non-official-member of the Technical Committee, but merely because he was performing a public duty does not make him ipso facto a public servant. Unlike a private person appointed as a member of a Regional Board or Planning Authority or Divisional Authority, as discussed hereinabove, who, under the Statute becomes a `public servant', the `applicant' appointed under a notification, which does not flow from a Statute, cannot be held to be a `public servant'.

32. Learned Public Prosecutor's reliance on Explanation 1 and 2 to Section 2(c)(viii) is completely misconceived in the peculiar facts of the case, as neither the applicant could be said to fall under any of the clauses of Section 2(c) of the PC Act nor is there any legal defect in the applicant's appointment.

33. Considering the aforesaid, it is not possible to hold in the facts of the present case, that the applicant was `holding an office' and consequently that he is a 'public servant', within the meaning of Section 2(c)(viii) of the PC Act. Thus, the cognizance taken by the learned Special Judge, is wholly without jurisdiction.

34. Considering what is noted above, the impugned order dated 17th January, 2014 passed by the learned Special Judge (Prevention of Corruption Act), Mumbai in Special Case No. 90/2010, is quashed and set aside and consequently the criminal proceedings being Special Case No. 90/2010.

35. Rule is made absolute in terms of prayer clause (a).