77. In this regard, it will be thus appropriate to refer to the often repeated observations of Hon'ble Supreme Court regarding cases based on circumstantial evidence. Hon'ble Supreme Court in the case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 in para 152, 153 and 154 observed as under:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant V. State of Madhya Pradesh [1952] SCR 1091. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [1969] 3, SCC 198 and Ramgopal v. State of Maharashtra AIR, 1972 SC 656. It may be useful to extract what Mahajan, J. has laid down in Hanumant case :
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 76 of 467 by the accused.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [1973] 2 SCC 793, where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendancy, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
78. Thus in the light of aforesaid well settled principles relating to appreciation of evidence in cases based on circumstantial evidence the facts and circumstances of the present case are required to be examined. It will be seen as to what all incriminating circumstances the prosecution has been successful in proving against the accused CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 77 of 467 persons. Thereafter it will be seen whether all such incriminating circumstances which stands conclusively proved on record form such a chain of incriminating evidence which unerringly point towards the guilt of accused persons only or not. In other words whether the said chain of incriminating circumstances rule out any conclusion which may be consistent with the innocence of the accused persons or not.
79. At this stage, I may also put a mark of caution that during the course of entire trial including at the time of addressing final arguments it has been repeatedly stated by Ld. Counsels for the accused public servants that to frame a given policy is the sole discretion of the Government of the day and the Court cannot substitute its decision/discretion over the decision/discretion exercised either by the officers of state Government of Bihar or that of Government of West Bengal or of MOC or even that of Screening Committee. Judicial review of the said decisions was thus stated to be beyond the purview of the present proceedings.
80. In this regard I may state that Ld. Counsels for the accused persons are certainly right in stating that in the present proceedings this Court can not substitute its decision/ discretion over that of officers of Government of Bihar or that of Government of West Bengal or of MOC or even that of Screening Committee, who were vested with such discretion and power to take a decision by law and also by virtue of their position. However, it will be worthwhile to mention that in the present proceedings this Court at no point of time is attempting to substitute the decision taken by any of the aforesaid authorities CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 78 of 467 and what is being examined is whether the decision taken or discretion which stood vested in the aforesaid authorities was exercised for any extraneous consideration or whether in exercise of the power so vested in them they abused their position as a public servant. Thus in the present proceedings this Court is simply examining as to whether there was any malice or malafide intention in the exercise of discretion which stood vested in these authorities or in other words whether the decision to recommend M/s VMPL for allocation of Moira Madhujore coal block by the Screening Committee and consequently the allotment of the same in favour of the company by MOC was actuated for some extraneous consideration or was taken on certain considerations which were not permissible under law. The sum and substance of the aforesaid exercise being undertaken in the present proceedings is to examine whether there exists any culpability in the exercise of discretion by the accused public servants or the decision so taken by them in favour of M/s VMPL amounts to commission of any offence for which charges have been framed against the accused public servants or not. Thus in these circumstances it can not be argued that this Court in the present proceedings can not examine the process as well as the procedure undertaken by the accused public servants which finally led to allocation of Moira-Madhujore coal block in favour of M/s VMPL. It is only after such an examination that it can be ascertained and concluded as to whether the said decision in favour of M/s VMPL or exercise of discretion by the concerned authorities was actuated by any malice or malafides or that their actions were bridled with CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 79 of 467 criminality or not. Thus at the cost of repetition it is stated that while undertaking the aforesaid exercise the question of substituting the decision taken by any of the authorities involved in any manner whatsoever does not arise.
81. In this regard, it would be also apt to refer to the following passage of Justice Holmes in United States Vs. Wurzbach 1930 (280) US 396.
"Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk ."
82. In fact the judicial review of the actions of officers of MOC or that of Screening Committee so constituted to make recommendations for allocation of various captive coal blocks in favour of different applicant companies was undertaken by Hon'ble Supreme Court in the case Manohar Lal Sharma V. Union of India, (2014) 9 SCC 516. The said exercise of judicial review undertaken by Hon'ble Supreme Court resulted in cancellation of allocation of all coal blocks as were allotted pursuant to the recommendations of all the 36 Screening Committees of MOC in favour of different applicant companies. The work of all the 36 Screening Committees were closely scrutinized by Hon'ble Supreme Court and detailed observations were made as regard their functioning. Accordingly observations made by Hon'ble Supreme Court qua 36 th Screening Committee were as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 80 of 467 "149. In the 36th meeting, which was held on 07.12.2007- 08.12.2007, 07.02.2008-08.02.2008 and 03.07.2008, the Screening Committee considered allocation of 23 coal blocks earmarked for non-power sector. For these 23 coal blocks earmarked for non-power sector, 674 applications were submitted by 184 companies for allocation. Some companies had applied for more than one block and some had submitted more than one application for single block for different end use plants located at different locations. The geological reserve of 23 blocks ## was noted by the Screening Committee. The minutes of the 36 th meeting show that the Committee decided to recommend blocks earmarked for pig iron (coking coal) jointly to two or more than two companies and nineteen blocks earmarked for other end- uses/non-cooking coal were recommended for allocation to single companies as well as jointly to two or more companies. The minutes of 36th meeting do not contain the particulars showing consideration of each application. There is no assessment of comparative merits of the applicants who were selected for recommendation. The minutes do not disclose how and in what manner the selected companies meet the norms fixed for inter se priority. Many of the selected companies were neither recommended by the State Government nor by the Administrative Ministry. Some of them were recommended by the State Government but not recommended by the Administrative Ministry while one of them was not recommended by the State Government but recommended by the Administrative Ministry. For Rajhara North (Central & Eastern) coal block, Vini Iron & Steel Udyog Ltd. had no recommendation by the State Government or by the Administrative Ministry. Similarly, for Thesgora-B/Rudrapuri coal block, Revati Cement P. Ltd. did not have recommendation either from the State Government or from the Administrative Ministry. As regards Tandsi-III and Tandsi-III (Extn.), Mideast Integrated Steels Ltd. did not have recommendation from the State Government. Similarly, as regards Thesgora-B/Rudrapuri, Kamal Sponge Steel & Power Limited had no recommendation from the State Government. As regards Moira Madhujore coal block, Ramswarup Lohh Udyog Ltd. had no recommendation from the Administrative Ministry.
150. From the above discussion, it is clear that 21 coal blocks stood allocated to private companies in pursuance of Screening Committee's recommendations during the period CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 81 of 467 from the 1st meeting held on 14.07.1993 till the 21 st meeting held on 19.08.2003. For the period from 04.11.2003 (22 nd meeting) to 18.10.2005 (30th meeting) in pursuance of Screening Committee's recommendations, 26 coal blocks stood allocated to private companies. Following 32 nd meeting held on 29.06.2006/30.06.2006 till the 34 th meeting on 07.09.2006/08.09.2006, in pursuance of the recommendations made by the Screening Committee, two coking coal blocks were allocated to private companies and twelve non-coking coal blocks were allocated to private companies. In pursuance of the recommendations made by the Screening Committee in 35th and 36th meetings, 33 coal blocks were allocated to private companies. Some of the coal block allocations made to the private companies have been de-allocated from time to time. For consideration of legality and validity of allocations made to such companies, it is not necessary to deal with de-allocation aspect. It needs no emphasis that assuming that the Central Government had power of allocation of coal blocks yet such power should have been exercised in a fair, transparent and non-arbitrary manner. However, the allocation of coal blocks to the private companies pursuant to the recommendations made by the Screening Committee in 36 meetings suffers from diverse infirmities and flaws which may be summarized as follows:
1st Meeting to 21st Meeting
1.. . . . .
. . . . .
2.
3.
4.
5.
6.
7.
8.
9.  M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 82 of 467
10. . . . . .
. . . . .
11.
12.
13.
14.
15.
16.
17.
18.
20.
21. . . . . .
22. The minutes of the 36th meeting do not contain the particulars showing consideration of each application for allocation of 23 coal blocks earmarked for non-power sector. There is nothing in the minutes to indicate how and in what manner the selected companies meet the norms fixed for inter se priority. Many of the selected companies were neither recommended by the State Government nor by the Administrative Ministry. Some of them were recommended by the State Government but not recommended by the Administrative Ministry while one of them was not recommended by the State Government but recommended by the Administrative Ministry. Many companies which had failed to secure allocations earlier yet they were recommended. The Screening Committee failed to consider capability and capacity of the applicant in implementing the projects.
151. The entire exercise of allocation through Screening Committee route thus appears to suffer from the vice of arbitrariness and not following any objective criteria in determining as to who is to be selected or who is not to be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 83 of 467 selected. There is no evaluation of merit and no inter se comparison of the applicants. No chart of evaluation was prepared. The determination of the Screening Committee is apparently subjective as the minutes of the Screening Committee meetings do not show that selection was made after proper assessment. The project preparedness, track record etc., of the applicant company were not objectively kept in view."
(Emphasis supplied by me)
83. It was however argued by Ld. Counsels for the accused persons that the observations made by Hon'ble Supreme Court in the said order dated 25.08.2014 can not be referred to by this Court in the present proceedings as Hon'ble Supreme court in the said matter never dealt with the issue of criminality of the persons involved and had only discussed the manner in which various coal blocks were allocated to different applicant companies in contravention of provisions of MMDR Act, 1957 and CMN Act, 1973.
In this regard I may clarify at the threshold itself that no conclusion as regard the criminality in the acts of persons involved in the present case is intended to be drawn on the basis of the aforesaid observations of Hon'ble Supreme Court. However, it can not be stated that the aforesaid observations of Hon'ble Supreme Court are not relevant to the facts in issue. Moreover the aforesaid observations show that the actions of officers of Government of Bihar, Government of West Bengal, Ministry of Steel, MOC or even that of Screening Committee can be subjected to judicial scrutiny. At the cost of repetition, I may however reiterate that in the present proceedings this Court shall be examining only as to whether the acts of all CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 84 of 467 persons arrayed as accused in the present case were actuated with any malice or malafides or not and thereby showing criminality in their actions or not.
84. Moreover, during the course of trial when officers of Ministry of Steel were examined by the prosecution then in their cross- examination it was even suggested to them by Ld. Counsels for the accused persons only that company M/s VMPL as was mentioned in their recommendations sent to MOC, ought to have been placed under different category from the one in which it placed by them. Thus Ld. Counsels for the accused persons themselves called upon this Court to appreciate the actions taken by the accused persons in the light of the fact that the company in question ought to have been placed in different category from the one in which it was placed by Ministry of Steel officers. Thus Ld. Counsels for the accused persons themselves called upon this Court to substitute the said decision of officers of Ministry of Steel with their own assessment of the status of companies.
Be that as it may, I shall be however dealing with the said issue in detail at a later stage of my present judgment and I intend to begin first with the role played by the private parties involved in the matter which finally led to allocation of Moira-Madhujore coal block in favour of M/s VMPL.
85. I may also mention that in accordance with the well-settled principles of criminal law various circumstances in the present case CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 85 of 467 shall be examined in the light of evidence led in this case only either by prosecution or by defence. The reiteration of aforesaid principle becomes necessary as during the course of trial including at the time of final arguments and even in the written submissions repeated attempts were made by prosecution as well as by Ld. Counsels for the accused persons to refer to evidence led in other coal block allocation matters or to conclusions drawn in judgments delivered by this Court in other coal block allocation cases beyond the extent as was permissible by law. I shall be referring to such instances in the later part of my present judgment.
(F) ROLE OF PRIVATE PARTIES i.e. A-1 M/S VMPL, A-2 VIKASH PATNI AND A-3 ANAND MALLICK IN THE ALLOCATION OF MOIRA-MADHUJORE COAL BLOCK IN FAVOUR OF A-1 M/s VMPL BY MINISTRY OF COAL.
86. The present case primarily requires examination of role played by accused private parties as well as that of the accused public servants with reference to the circumstances in which company M/s VMPL came to be allocated Moira-Madhujore coal block situated in the State of West Bengal. However I first intend to deal with the role played by the accused private parties, for the same will only facilitate in understanding the role played by accused public servants more clearly. However even to understand the role played by the accused private parties in proper perspective, certain factual aspects of the matter needs to be revisited. The said factual aspects will throw light as to the circumstances in which the application CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 86 of 467 submitted to MOC on behalf of A-1 M/s VMPL for allocation of a captive coal block was pursued by the company and what was their actual intention in obtaining allocation of any such captive coal block. It will also show as to whether there was ever any intention of the company M/s VMPL or its Directors/officers to establish any such integrated steel plant in Bihar for which allocation of a coal block was sought for by them from MOC.
87. It is the admitted case of A-1 M/s VMPL that in the year 2006 it had applied to Government of Bihar for allotment of 200 acres of land to establish an integrated steel plant in Begusarai District, Bihar. Accordingly on request of the company, BIADA had decided to allot 200 acres of land in District Begusarai Bihar to the company. In fact the State Investment Promotion Board (SIPB), Government of Bihar had also approved in principal the said proposal of the company to set up an integrated steel plant in the State. In this regard a communication dated 12.08.2006 was sent to A-3 A.K. Mallick, Business Development Manager, M/s VMPL by Department of Industries, Government of Bihar vide letter No. 1408 dated 12.08.2006 [available at page 3 in Ex. P-81 (Colly) (D-88)]. The said letter read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 87 of 467 "Government of Bihar Department of Industries (Tech. Dev.) Letter No. 1408 Dated 12-8-06 From Mahesh Prasad Director, Tech. Development, Bihar, Patna.
To A.K. Mallick Business Development Manager, Vikash Metal & Power limited.
35 Chittranjan Avenue 6th Floor Kolkata-700012. Phone-913322115115, 22116114 Fax-913322115390 Sub:- Proposal for setting an Integrated Steel Plant of Bihar.
Sir, In pursuant to your letter dated 04-08-06, your proposal was placed before State Investment promotion Board on 07-08-2006. In this Board your proposal for setting an Integrated Steel Plant has been approved in principal. You have not submitted project report. Therefore you are also requested to submit project report immediately.
This is your information and necessary action please.
Yours faithfully, Sd/-
(Mahesh Prasad) Director Technical Development Bihar, Patna."
(Emphasis supplied by me)
88. As coal and iron ore were the two important raw materials required for running a sponge iron plant so the company in order to procure iron ore for its proposed integrated steel plant had applied to Government of Orissa for grant of iron ore mine. Accordingly the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 88 of 467 company informed Government of Bihar that they have already applied for iron and manganese ore mine to Government of Orissa on 01.03.2004 and it was requested that Government of Bihar may recommend the case of company M/s VMPL to Secretary, Department of Mines, New Delhi and also to Principal Secretary, Department of Steel and Mines, Bhubaneshwar, Orissa so that the iron and manganese ore mine applied for by the company may be approved and allotted in their favour. It was also communicated to Government of Bihar that construction of the steel industry shall be started as soon as possible. [In fact company M/s VMPL had earlier also applied to Government of Jharkhand for allotment of an iron ore mine as prior to Bihar it had proposed to establish its steel project in Jharkhand only.]
89. Accordingly based on one such communication dated 11.09.2006 [available at page 96 in Ex. P-81 (Colly) (D-88)] made by the company M/s VMPL, Sh. S. Vijayaraghwan, Industrial Development Commissioner, Department of Industry, Government of Bihar wrote a letter dated 27.09.2006 [available at page 97 in Ex. P- 81 (Colly) (D-88)] to Secretary, Department of Mines, Government of India recommending the case of company M/s VMPL for allotment of iron and manganese ore mine in Orissa. Copy of the said communication was also sent to Principal Secretary, Ministry of Steel and Mines, Government of Orissa. In the meantime company M/s VMPL however made yet another communication dated 27.09.2006 to Executive Director, BIADA requesting that in addition to 200 acres CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 89 of 467 of land which has already been applied for by the company for setting up an integrated steel plant in Bihar, the company may also be allotted an additional 100 acres of land for second phase of the project. A sum of Rs. 6 lacs was also deposited with BIADA as the booking amount @ Rs. 2000/- per acre. The said communication dated 27.09.2006 [available at page 98-99 in Ex. P-81 (Colly) (D-88)], read as under:
VIKASH METAL & POWER LIMITED An ISO 9001 : 2000 COMPANY Regd. Office: An Integrated Steel Plant 35, Chittaranjan Avenue, 6th Floor Kolkata - 700012, India Phone : +91 33 22115115, 22116114 Fax : +91 33 22115390 E-mail : Info @ Vikashmetalpower.com Website : www.vikashmetalpower.com Date: 27/09/06 To, The Executive Director Bihar Industrial Area Development Authority Regional Office, Darbhanga Kind Attn:- Er. Anil Kumar Thakur
Sub:- Allotment of 300 (Three Hundred) Acre land at Growth Centre Begusarai for our proposed Integrated Steel Plant.
Respected sir, As you know that our organization M/s Vikash Metal & Power Ltd has proposed to setup an Integrated Steel Plant in Bihar, for which we have applied for 200 (Two Hundred) Acre of land to BIADA. But our management has decided to acquire an additional 100 (One Hundred) Acre of land for the II phase of the project. Therefore we humbly request your kind self to allot us 300 Acres of land instead of 200 Acres for our proposed project.
In the meeting held on 19th Sept, 2006 at Patna, BIADA has instructed us to deposit Rs. 2000/- per Acre for allocation of land for our proposed project. We are enclosing herewith Draft No. 008133 dated 25/09/2006 for Rs. 6 (Six) Lacs in favour of BIADA Payable at Darbhanga as our booking money for the land for our proposed project. But we have already inform you that to run an Integrated Steel Plant the major raw materials are Iron ore and Coal. The Department of Industries CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 90 of 467 of Bihar Govt. has assured us that they will recommend our name to the Central Govt. for allocation of Iron ore and Coal Mines. On the basis of the assurance we are depositing Rs. 6 (Six) Lacs as our booking money for the allocation of land for our project. Therefore we request you to kindly allot us 300 Acre of land immediately so that we can start our Civil Work for our proposed project at the earliest. We also at the same time like to inform you that any other expenses / payments will be made by us only after the recommendation / allocation of Iron ore and Coal mines.
We also would like to bring to your kind notice that if we are not allotted any Iron ore and Coal Mines then the land we will purchase for our proposed project will be of no use. Therefore in that case we shall request you to return us the booking money of Rs. 6 (Six) Lacs which we have deposited with you and we shall shift our project to some other state.
We solicit your kind cooperation in the above mentioned matter.
Thanking you Yours faithfully For Vikash Metal & Power Ltd.
Sd/-
(Anand Mallick) Business Development Manager Encl: As above.
C.C. Industrial Development Commissioner, Patna Managing Director, BIADA"
(Emphasis supplied by me)
90. Accordingly pursuant to certain further communications entered into between BIADA and the company, land measuring 300 acres in block No. 64, Begusarai Growth Centre, Bihar was allotted in favour of M/s VMPL by BIADA. The company was however also called upon to deposit a sum of Rs. 39,15,00,000/-(Rs. Thirty Nine Crores Fifteen Lacs) for allotment of said 300 acres of land on adhoc basis. Letter for allotment dated 07.12.06 Ex. PW 2/D-2 (available at page 345 in D-4) issued by BIADA in this regard read as under: CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 91 of 467 BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY (A Govt. Of Bihar Undertaking) Regional Office, Bela, Darbhanga<EMAIL_ADDRESS>Phone No-06272-247505 Fax-06272-247045 No 1672 Dated 7/12/06 From, Er. Kumar Thakur Executive Director.
To, M/s Vikash Metal & Power Ltd.
Sri Vikash Patni, Managing Director 35, Chittranjan Avenue, 6th Floor.
Kolkata - 700012 Sub:- Allotment of 300 Acre of land to M/s Vikash Metal & Power Ltd. Sir, With reference to your letter No. NIL Dated 13/11/06 For allotment of land in Begusarai Growth Centre to M/s Vikash Metal & Power Ltd. M.D. Sri Vikash Patni for manufacture of Integrated Steel Plant with Power Plant Area 300 Acre of land in plot No. 64 in Begusarai Growth Centre is allotted to this unit on lease for 90 (ninety) years on the following terms and conditions:-
The unit will have to deposit a sum of Rs. 39,15,00,000/- (Rupees thirty nine Crores fifteen lacs) only for 300 Acre of land calculated @ Rs. 13,05,000/- (Rupees Thirteen lacs five thousand) only per acre on adhoc basis towards the cost of land and its development charge which may please be paid to Bihar Industrial Area Development Authority in the shape of Bank draft payable at Darbhanga. The final price of land will, however, be fixed the actual cost of the development of the land known and the unit will have to pay the difference between the adhoc rate and the rate finally determined by the Bihar Industrial Area Development Authority and they will have to execute an agreement to this effect and deposit the 1st installment @ 30% of the total value of land within the period of three months in special case as per order of the Govt.
In case the unit so desire it can deposit rest price of land other them 1st installment in 7 (Seven) equal yearly installment with 5% interest and rebate of 2% on timely payment of installment and also with penal interest @ 2% after the period of installment paid over.
Possession over the land would be delivered to the unit after deposit of 1st installment of land price, acceptance of agreement Bond and an affidavit in prescribed proforma regarding registration of Scheme as well as allotment of land. The unit will have to give preference in employment as well as in practical training to the local people of the are in their factory.
This allotment letter is valid only when SSI Registration certificate is valid. They have to pay a rent of Rs. 100/- (Rupees One hundred) only per Acre per year and maintenance charge Rs. 500/- (Rupees Five hundred) only per acre per year which will be double after 4(four) years from the date of allotment subject to review after every 20 (Twenty) Years.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 92 of 467 The allottee should deposit the 1st installment of price of land and to execute agreement bond within three month from the date of allotment, falling which the allotted land will be treated as automatically cancelled and the amount so deposited will be forfeited.
The allottee should get the land of factory shed approved within THREE MONTHS of the date of allotment for which he must submit necessary plans to the proper authority within a month from the date of taking possession of the land. The allottee will not permitted for construction of residential house or they will not use the factory premises as a residence in any case, failing which the allotted land will be cancelled.
The industrial unit should go into production or the allottee should show positive progress for the same within Six months from the date of allotment of land. Your are requested to Kindly furnish acceptance of terms of allotment, the terms of lease along with agreement bond duly executed and the Bank Draft as 1 st installment within three months.
If the amount is not deposited within 90 (Ninety) days and the unit is not started construction work within six months & production work within two years from the date of issue of allotment order, the allotment order will automatically be cancelled in both cases without any previous notice and the amount so deposited will Stand forfeited.
Yours faithfully Sd/-
Executive Director, Bihar Industrial Area Development Authority Regional Office, Darbhanga.
(Emphasis supplied by me)
91. M/s VMPL thereafter vide letter dated 13.11.2006 Ex. PW 2/C-2 (available at page 243 in D-4) requested BIADA to issue a formal letter of allotment of land in their favour as the same will facilitate them in obtaining raw material from different government departments for their integrated steel plant. The said letter dated 13.11.2006 read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 93 of 467 "VIKASH METAL & POWER LIMITED Regd. Office: 35, Chittaranjan Avenue, 6th Floor An ISO 9001 : 2000 COMPANY Kolkata - 700012, India Phone : +91 33 22115115, 22116114 An Integrated Steel Plant Fax : +91 33 22115390 E-mail : Info @ Vikashmetalpower.com Website : www.vikashmetalpower.com Dated: 13.11.2006 To THE MANGING DIRECTOR, Bihar Industrial Area Development Authority Patna Sub: Issue of allotment letter for allocation of land at Bengusarai for our proposed Integrated Steel Plant. Dear Sir,
Referred our meeting held on 3rd November 2006 at your good office wherein it has been discussed that BIADA will give us six months time for depositing money for allocation of land on our request for our proposed Integrated Steel Plant at Bihar. We thankful to Department of Industries, Govt. of Bihar for issuance of recommendation of allocation of Iron Ore Mines at Orissa to Ministry of Mines, Govt. of India and Development of Steel & Mines, Orissa.
In reference to above we confirm that we have a good intention to purchase land and to establish our proposed project at Bihar for which we have already deposited Rs. 6 laks as an advance to BIADA for procurement of suitable land for our proposed Project at Bihar.
It is mandatory to any Govt. Body to mention the proposed site for procurement of raw material for our proposed project. We there for request you to issue us the allocation letter for the site at Begusarai allotted to us for our proposed project to enable us to procure raw material for the proposed Integrated Steel Plant to be setup by M/s Vikash Metal & Power Ltd.
We silicate your kind cooperation in the above mentioned matter.
Thanking you Yours faithfully for M/S VIKASH METAL & POWER LTD.
Sd/-
(Anand Mallick) Business Development Manager CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 94 of 467 Encl: As above.
C.C. I.D.C Deptt of Industries, Govt. of Bihar, Executive Director, BIADA, Darbhanga"
(Emphasis supplied by me)
92. Subsequent thereto M/s VMPL applied to MOC for allotment of a coal block for captive use stating that it intends to establish an integrated steel plant (of ultimate capacity 1.1 MTPA) in Begusarai District, Bihar. The said application was submitted to MOC on 12.01.2007 and it was stated in the application that 300 acres of land has been allotted to it. However immediately thereafter M/s VMPL made yet another communication dated 31.01.2007 (i.e. within next 20 days) to the Industrial Development Commissioner, Department of Industries, Government of Bihar stating that as the chances of their obtaining iron ore mine in their favour from Government of Orissa or Government of Jharkhand are very bleak so they are not in a position to start their proposed steel industry. It was also stated that BIADA had asked them to make full payment for 300 acres of land failing which Rs. 6 lacs already deposited by the company as advance will be forfeited. It was however further stated in the said communication itself that on account of policy of Government of Bihar for permitting setting up of an integrated power plant by private sector, the company M/s VMPL now intends to establish a 2000 MW power plant. It was also stated that an application dated 19.06.2006 in this regard was already submitted to Government of Bihar but the said proposal was cancelled by the Government. Request was thus made to revive the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 95 of 467 said application of the company. A project report of the first phase of the proposed Power Project i.e. for an integrated power plant of 2 x 250 MW capacity which will have full utilization of the land as allotted by BIADA was also submitted alongwith the letter.
93. The said communication dated 31.01.07 (Available at page 10 in Ex. P-69 (Colly) (D-76)] was submitted under the signatures of A-3 Anand Mallick, Business Development Manager, M/s VMPL and the same read as under:
"VIKASH METAL & POWER LIMITED An ISO 9001 : 2000 COMPANY Regd. Office:
35, Chittaranjan Avenue, 6th Floor An Integrated Steel Plant Kolkata - 700012, India Phone : +91 33 22115115, 22116114 Fax : +91 33 22115390 E-mail : Info @ Vikashmetalpower.com Website : www.vikashmetalpower.com Date : 31.01.2007 To, The Industrial Development Commissioner Department of Industries, Govt. of Bihar Patna Subject : Proposal for setting up a 2 x 250 MW Independent Power Project (first phase) and Power Purchase Agreement with Bihar State Electricity Board.
Respected Sir, We have proposed to set up an Integrated Steel Plant in Bihar for which State Investment Promotion Board has principally approved our proposal and we have also been allotted 300 acre of land at Begusarai by Bihar Industrial Area Development Authority.
To setup an Integrated Steel Plant the major raw material is Coal & Iron Ore, regarding Coal Block, we have applied to Ministry of Coal, Govt. of India, New Delhi and there is a possibility of getting one Coal Block in the name of our company Vikash Metal & Power Ltd. but the other raw material Iron Ore for which you were kind enough to write to the Govt. of India, the Govt. of Orissa and Govt.
of Jharkhand for allocation of one Iron Ore Mines in the name of our company, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 96 of 467 but in spite of your serious and sincere efforts there is a very bleak chances to allocate any Iron Ore Mines in our favour. Hence without proper planning of major raw material we cannot start our proposed Steel Industry mentioned above. In reference to land allotment, BIADA has given us three months time to make full payment against 300 acre land allotted to us for which we have paid an amount of Rs. 6 Lakhs as an advance towards purchase of land to BIADA, shall be forfeited by them if we do not clear the total payment of 300 acres within three months.
Now we come to know that Govt. of Bihar has shown interest for setting up IPPS by the private sectors in Bihar. In view of above we would like to mention that we have already applied to the Govt. of Bihar for setting up 2000 MW IPP (phase wise) vide our application dated 19.06.2006 along with the requisite fees and relevant documents. But due to the Tender Process the Govt. of Bihar has cancelled our Power Project Proposal. If the Govt. of Bihar is coming up with new Power Project Policy, then we request you to please revive our earlier application dated 19.06.2006 and permit us to set up a Power Plant in Bihar and at the same time a Power Purchase Agreement should also be done with us. We are submitting herewith Project Report of the first phase of our proposed 2 x 250 MW IPP, which will have the full utilization of the land as allotted to us by BIADA and definitely there will be a generation of employment in the State of Bihar and we also assured to the State Govt., we shall commence our civil work immediately after receiving due recommendation and permission from the State Govt.
We solicit your kind cooperation in the above mentioned matter Thanking you Yours faithfully For Vikash Metal & Power Ltd.
Sd/- (Anand Mallick) Business Development Manager Encl: - As above C.C: - CMD, BSEB Director, Industry Department"
(Emphasis Supplied by me)
94. The said new proposal to establish an integrated power plant of 2000 MW was accordingly considered by BIADA. Subsequently vide communication dated 15.03.2007 Ex. PW 2/DX-2 [available at CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 97 of 467 page 110 in file Ex. P-2 (Colly) (D-3)]. Department of Industries, Government of Bihar informed to M/s VMPL that pursuant to letter dated 31.01.2007 of the company, its proposal to establish a Power Plant of capacity 2 X 250 MW at Begusarai has been approved by the State Investment Promotion Board on 12.03.2007. the said communication dated 15.03.2007 read as under:
"Government of Bihar Department of Industries (Tech. Dev.) Letter No. 517 Dated 15/3/07 4/तक०ववववध -42/07 From Mahesh Prasad Director, Tech Development Bihar, Patna To, M/s Vikash Metal & Power Ltd., 35, Chittaranjan Avenue, 6th Floor, Kolkatta- 700012.
Sub:-Proposal for setting up a 2x250 MW Independent Power Project.
Sir, In pursuant to your letter dated 31.01.2007, I am to inform you that your proposal for establishment of 2x250 MW Power Plant at Begusarai has been approved by the State Investment Promotion Board on 12.03.2007.
Thanking you, Yours faithfully, Sd/- 15/03/07 (Mahesh Prasad) Director Technical Development Bihar, Patna"
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 98 of 467
95. The company M/s VMPL thereafter made yet one more communication dated 09.04.07 to Executive Director, BIADA wherein also it stated that in the absence of proper raw material it will not be possible for them to put up the proposed integrated steel plant. It was stated that the company has accordingly decided that it shall put up a 2000 MW integrated power plant. It was also informed that the said proposal of integrated power plant has even been approved by State Investment Promotion Board, Government of Bihar on 12.03.2007. It was further stated that while coal to run the power plant will be arranged by them but in order to establish 2000 MW power plant, the company will be requiring total of 1000 acres of land. It was thus stated that in addition to 300 acres of land earlier allotted by BIADA, additional land measuring 700 acres be also allotted to the company. A request was also made to BIADA that the date of depositing money towards 300 acres of land be also extended for a period of 6 months so that in the meantime MOU may be signed with Government of Bihar and adequate quantity of coal to run the power plant may be arranged. The said communication dated 09.04.07 Ex. PW 2/E-1 [Available at page 115-114 in file Ex. P-2 (Colly) (D-3)] read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 99 of 467 VIKASH METAL & POWER LIMITED Regd. Office:
35, Chittaranjan Avenue, 6th Floor Kolkata - 700012, India An ISO 9001 : 2000 COMPANY Phone : +91 33 22115115, 22116114 Fax : +91 33 22115390 An Integrated Steel Plant E-mail : Info @ Vikashmetalpower.com Website : www.vikashmetalpower.com Date 9-04-2007 To, The Executive Director Bihar Industrial Area Development Authority Darbhanga Subject :- Allotment of 300 acre of land to M/s Vikash Metal & Power Ltd.
Ref. Letter No. 1672 Dated 7-12-06. Dear Sir,
Referred to your letter as mentioned above we would like to bring your kind notice that 300 acre of land was allotted to us for our Proposed Integrated Steel Plant at Begusarai, Bihar. Earlier we have discussed the matter with various officials that our Proposed Integrated Steel Plant will only be viable if we were allotted Iron Ore Mines and suitable Coal Block, for which we have written several letter to the concerned officials to allot us an Iron Ore Mines so that we can establish our proposed Integrated Steel Plant in Bihar at the earliest.
Now looking in to the market scenario it would not be possible for us to put up the Proposed Integrated Steel plant without allotment of any Iron ore Mines in our favour. Therefore we have decided that we shall put up our Proposed 2000 MW IPP in Phase wise so that we can support the Bihar Government to supply with power to its people in the State. We also look like to mention that our Proposed IPP has already been given approval by SIPB (copy enclosed) and necessary Coal to run the Power Plant will be arranged by us. We have alredy been allotted 300acre of land but to put up 2000 MW Power Plant 1000 acre of land is necessary, therefore we request you to allot us a further 700 acre of land so that we can plan our Proposed Project accordingly.
Sir, We would like to make an appeal that kindly extend the date of depositing money for the land allotted to us for the further period of 6 month so that in the mean time MOU can be sign with the Government of Bihar and also we could arrange adequate quantity of Coal to run the Power Plant interruptedly. We are submitting here with the Project Report of our Proposed 2000 MW IPP for your kind perusal.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 100 of 467 We solicit your kind Co-operation in the above mentioned matter.
Thanking you Your's faithfully For Vikash Metal & Power Ltd sd/-
(Anand Mallick) Business Development manager Encl :- As above.
CC :- MD, BIADA, Patna WORKS : VILL. : PORADIHA, P.S. : SANTURI, DIST. : PURULIA, WEST BENGAL, PIN-722 153, PHONE :<PHONE_NUMBER>8/159, FAX :<PHONE_NUMBER>0 (Emphasis supplied by me)
96. At this stage it would be worthwhile to mention that in the meantime company M/s VMPL was being repeatedly called upon by BIADA to deposit the money amounting to Rs. 39,15,00,000/- towards allotment of 300 acres of land. The company was also asked to undertake construction of boundary wall on the said land by 30.06.2007.
97. One such letter dated 07.05.2007 was issued by BIADA to M/s VMPL and wherein the company was also asked to complete construction of boundary wall around 300 acres of land allotted to it by 30.06.2007. Time was also given to the company to deposit the cost of land also by 30.06.07. The letter dated 07.05.07 Ex. PW 2/F [Available at page 116 in file Ex. P-2 (Colly) (D-3)] read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 101 of 467 वबिहहार आआै दद्योवगिक कक्षेत ववकहास पहाधधकहार कक्षेतत्रीय कहायहार्यालय, दरभभगिहा ।
Email<EMAIL_ADDRESS>Phone No: 06272-247505 Fax- 06272-
247045 पतहाभकक- 478 वदनहाभकक- 07.05.07 पक्षेषक, अवनल ककमहार ठहाककर कहायर्या कहारत्री वनदक्षेशक।
सक्षेवहा मम, सवर्या शत्री ववकहास मक्षेटल एभ ड पहावर धल0 शत्री ववकहास पटनत्री, पबिभध वनदक्षेशक, 35 वचितरभजन एवन्यय 6 वव फ्लद्योर, कद्योलकहातहा - 700 012 ववषयक- सवर्या शत्री ववकहास मक्षेटल एभ ड पहावर धल० कद्यो गहाक्षेथ समटर, बिक्षेगिकसरहाय मम 2000 मक्षेगिहावहाट पहावर प्लहाभट कक स्थहापनहा कक्षे धलए 1000 एकड भयवम आवभटन कक्षे सभबिभध मम।
महहाशय, उपरद्योक ववषय पर कहनहा हआै वक वबियहाडहा कक्षे पत्री०सत्री०सत्री० कक बिआैठक वदनहाभक 01.05.07 धजसमम आपकक्षे पवतवनधध भत्री उपसस्थत थम आपकक्षे पररयद्योजनहा कक ववस्ततृत समत्रीकहा कक गिरर्या ।
समत्रीकद्योपरहान्त सवमवत दहारहा यह वनरर्या य धलयहा गियहा वक रकहारर्या आवभवटत ३०० एकड भयवम मम चिहारर तरफ चिहहारवदवहारत्री वनमहार्यार वदनहाभक 30.06.07 तक कर लम। रसत्री अवधध कद्यो उनकक्षे अनकरद्योध पर अवधध ववस्तहार समझहा जहायक्षेगिहा। परभतक आवभवटत भयवम पर रकहारर्या कहा भहाआैवतक स्वहावमत्व नहव महानहा जहायक्षेगिहा।
उपरद्योक अवधध तक अगिर रकहारर्या दहारहा रसकहा अनकपहालन नहव वकयहा जहातहा हआै तद्यो आवभवटत भयवम रदद कर दत्री जहायगित्री। यह भत्री वनरर्या य धलयहा गियहा वक उपरद्योक ववरर्या त अवधध कक्षे ददौरहान यवद कद्योरर्या बिडक्षे उदमत्री दहारहा उदद्योगि कक स्थहापनहा कहा आवक्षेदन पहाप हद्योतहा हआै तद्यो उनकक्षे आवक्षेदन पर ववचिहार वकयहा जहा सकतहा हआै।
अतक आप सवमवत कक्षे वनरर्या य कक्षे आलद्योक मम अवबिलम्बि कहारर्या वहारर्या शकर करम । आपकक्षे रर्या कहारर्या कद्यो वदनहाभक CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 102 of 467 30.06.07 तक आवभवटत भयवम कक रहावश जमहा करनक्षे कक अवधध ववस्तहार भत्री रस कहायहार्यालय कक्षे पहातहाभक 1672 वदनहाभक 07/12/06 कक्षे क्रम मम दत्री जहातत्री हआै।
ववश्वहासजन कहायर्या कहारत्री वनदक्षेशक।
जहापहाभकक- 478 वदनहाभकक- 07.05.07 पवतधलवपक- पभहारत्री ववकहास, वबिहहार आआै दद्योवगिक कक्षेत ववकहास पहाधधकहार, रसन्दरहा भवन, बिक्षेलत्री रद्योड, पटनहा कहाक्षे वदनहाभक 02.05.07 कद्यो पत्री०सत्री०सत्री० कक्षे अनकपहालन मम सयचिनहाथर्या एवभ आवश्यक कहारवहारर्या हक्षेतक पक्षेवषत ।
कहायर्या कहारत्री वनदक्षेशक।
(Emphasis supplied by me)
98. Thereafter vide another communication dated 15.06.07 company was again reminded that the period of deposit of requisite amount towards allocation of land or construction of boundary wall i.e. 30.06.2007 is soon going to expire and as the company has neither made any payment towards cost of land and has also not undertaken construction of boundary wall so it appears that company was no longer interested in the allotment of said land and accordingly company was issued a show cause notice as to why the period of allotment of land may not be deemed to have expired. The said communication dated 15.06.07 Ex. PW 2/F-1 [Available at page 117 in file Ex. P-2 (Colly) (D-3)] read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 103 of 467 "वबिहहार आआै दद्योवगिक कक्षेत ववकहास पहाधधकहार कक्षेतत्रीय कहायहार्यालय, दरभभगिहा ।
Email<EMAIL_ADDRESS>Phone No: 06272-247505 Fax- 06272-247045 पतहाभकक- 1111 / वदनहाभकक- 15.06.07 / पक्षेषक, एन०कक्षे०यहादव कहायर्या कहारत्री वनदक्षेशक (प०) सक्षेवहा मम, सवर्या शत्री ववकहास मक्षेटल एभ ड पहावर धल0 शत्री ववकहास पटनत्री, पबिभध वनदक्षेशक, 35, वचितरभजन एवन्यय 6 ठत्री फ्लद्योर, कद्योलकहातहा - 700012 ववषयक- सवर्या शत्री ववकहास मक्षेटल एभ ड पहावर धल० कद्यो गहाक्षेथ समटर, बिक्षेगिकसरहाय मम पहावर प्लहाभट कक स्थहापनहा कक्षे धलए भयवम कक्षे आवभटन कक्षे सभबिध भ मम।
महहाशय, उपरद्योक ववषय रस कहायर्या लय कक्षे पतहाभक 478 वदनहाभक 07.05.07 कहा कतृपयहा सभदभर्या करम। पत दहारहा आपकद्यो सयवचित वकयहा जहा चिककहा हआै वक रस कहायहार्यालय कक्षे पतहाभक 1672 वदनहाभक 07.12.06 दहारहा आवभवटत 300 एकड भयवम मम चिहारर चिरफ चिहहारवदवहारत्री कहा वनमहार्यार 30.06.07 तक कर लत्री जहाय आआै र रस अवधध कद्यो हत्री आपकक्षे अनकरहाक्षेध पर अवधध ववस्तहार समझत्री जहाय तथहा रसक्षे आवभवटत भयवम पर रकहारर्या कहा भहाआैवतक स्वहावमत्व नहव महानहा जहाय। पत दहारहा यह भत्री सयवचित वकयहा गियहा थहा वक उपरद्योक अवधध तक अगिर रकहारर्या दहारहा रसकहा अनकपहालन नहव वकयहा जहातहा हआै तद्यो आवभवटत भयवम रदद कर दत्री जहायगित्री। उपयकर्याक शतहार भ कक्षे अनकपहालन कक्षे सहाथ हत्री वदनहाभक 30.06.07 तक आवभवटत भयवम कक रहावश जमहा करहानक्षे कक अवधध दत्री गियत्री थत्री।
उपयकर्याक तथ्यर कहा अनकपहालन आपकक्षे स्तर सक्षे अबि तक नहव हह आ हह। स्थल वनरत्रीकर सक्षे यह भत्री स्पष हआै वक रस भयवम पर कद्योरर्या वनमहार्यार कहायर्या पहारम्भ नहव वकयहा गियहा हआै, जबिवक भयवम आवभटन कक महान्यतहा अवधध वदनहाभक 30.06.07 कद्यो समहाप हद्यो रहत्री हह। एक्षे सहा पतत्रीत हद्योतहा हआै वक आवभवटत स्थल पर पस्तहाववत प्लहाभट स्थहापनहा हक्षेतक अबि आप रच्छकक नहव हआै। अतक पत पहाप हद्योतक्षे हत्री कतृपयहा स्पष करम वक उपयकर्याक CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 104 of 467 कहारहारर सक्षे क्यर नहव भयवम आवभटन आदक्षेश कक महान्यतहा अवधध समहाप समझत्री जहाय।
ववश्वहासजन कहायर्या कहारत्री वनदक्षेशक (प०) जहापहाभकक- 1111 / वदनहाभकक- 15/06/07 /
पवतधलवपक- पबिभध वनदक्षेशक, वबिहहार आआै दद्योवगिक कक्षेत ववकहास पहाधधकहार, रसन्दरहा भवन, बिक्षेलत्री रद्योड, पटनहा कहाक्षे सयचिनहाथर्या एवभ हक्षेतक पक्षेवषत ।
कहायर्या कहारत्री वनदक्षेशक (प०)"
(Emphasis supplied by me)
99. Subsequently vide another communication dated 27.06.07 company M/s VMPL was informed by BIADA that if even 30% of the cost of land is not deposited by the date fixed then the allotment of land should be deemed to have been cancelled.
100. However in response to communication dated 15.06.2007 of BIADA the company M/s VMPL wrote a letter dated 28.06.07 Ex. PW 2/E-3 (D-3) to Managing Director BIADA stating that they have already applied to MOC for allotment of coal to serve their proposed power plant at Begusarai. It was also stated that a meeting of the Screening Committee has taken place on 20.06.2007 but the result thereof is still awaited. It was further stated by the company that without steady support and supply of coal the proposed power plant will be unviable. It was also stated by the company that the land which has been allotted by BIADA will only be utilized to set up the proposed power plant and no other alternate industry. Extension of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 105 of 467 date of payment of necessary amount towards allotment of land and to construct boundary wall thereof was thus prayed for till 31.08.2007. The communication dated 28.06.2007 Ex. PW 2/E-2 [Available at page 120 in file Ex. P-2 (Colly) (D-3)] read as under:
"VIKASH METAL & POWER LIMITED Regd. Office: 35, Chittaranjan Avenue, 6th Floor An ISO 9001 : 2000 COMPANY Kolkata - 700012, India Phone : +91 33 22115115, 22116114 An Integrated Steel Plant Fax : +91 33 22115390 E-mail : Info @ Vikashmetalpower.com Website : www.vikashmetalpower.com Date : 28.06.2007 To, The Managing Director,
Bihar Industrial Area Development Authority, Patna Subject : Proposed to set up 2 x 250MW Power Plant at Begusarai, Bihar Ref : Your letter No. 1111 dated 15.06.07 issued by your Executive Director, Regional Office, Darbhanga Respected Sir, Refere to your above mentioned letter we would like to bring to your kind notice that to setup 2 x 250MW Power Plant, the basic raw material is coal and the same has earlier informed to you in our all correspondence. For uninterrupted supply of coal, we have applied to the Ministry of Coal for allotment of coal block to serve our proposed Power Plant at Begusarai, for which Screening Committee Meeting was held on 20th June 2007 at New Delhi, and the result of the Screening Committee are still awaited.
Sir, it is needless to explain that without the steady support and supply of coal, our proposed Power Plant will be unviable. The land which has been allotted to us by BIADA will only be utilized to setup the proposed Power Plant and no other alternate industry.
Therefore, as you have mentioned in your letter to start the Boundary wall and to pay the balance amount against allotment of land to us by 30.06.2007 will not be possible for us until and unless the outcome of the screening Committee Meeting are known to us. The fate of the project is totally depending on the allotment of the coal block to us. Hopefully the result of the Screening Committee Meeting will be known by 1 st of August 2007. Therefore, we request you to kindly extend the date of payment for allotted land and also CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 106 of 467 to construct the boundary wall at our site from 30.06.07 to 31.08.07.
We solicit your kind cooperation in the above mentioned matter Thanking you For Vikash Metal & Power Ltd.
Sd/- (Anand Mallick) Business Development Manager C.C.
1. Principal Secretary, Dept of Industry, Patna
2. Executive Director, Regional Office, Darbhanga (Emphasis supplied by me)
101. The said communication was also made by A-3 Anand Mallick under his own signatures on behalf of M/s VMPL. However subsequent thereto BIADA decided not to grant any further time to the company either to make payment towards allotment of land or to construct the boundary wall and vide order dated 21.09.2007 the allotment of 300 acres of land in favour of the company was cancelled. The amount of Rs. 6 lacs earlier deposited by the company M/s VMPL as processing fee was also forfeited.
The letter dated 21.09.2007 Ex. PW 2/G [Available at page 124 in file Ex. P-2 (Colly) (D-3)] read as under:
CBI Vs.  M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 108 of 467 सस्थत सहारत्री सम्पवतयर कद्यो हटहा कर भयखभड कहा पभहार कक्षेतत्रीय पभहारत्री कद्यो ससौंप दम, अन्यथहा कहानयनत्री कहारवहारर्या कक जहायक्षेगित्री।
कहायर्या कहारत्री वनदक्षेशक जहापहाभकक- 2259 / वदनहाभकक- 21-09-07 /
पवतधलवपक- कक्षेतत्रीय पभहारत्री गहाक्षेथ समटर, बिक्षेगिकसरहाय कद्यो सयचिनहाथर्या एवभ आवश्यक कहारर्या वहारर्या हक्षेतक पक्षेवषत । कक्षेतत्रीय पभहारत्री कद्यो वनदक्षेश वदयहा जहातहा हआै वक वक्षे उपरद्योक उलक्षेधखत आदक्षेश कक्षे अनकपहालन कद्यो सकवनसश्चित करमगिक्षे।
कहायर्या कहारत्री वनदक्षेशक जहापहाभकक- 2259 / वदनहाभकक- 21-09-07 /
पवतधलवपक- पबिभध वनदक्षेशक, वबिहहार आआै दद्योवगिक कक्षेत ववकहास पहाधधकहार, उदद्योगि भवन, पयवर गिहागाँधत्री मआैदहान पटनहा कक सक्षेवहा मम सयचिनहाथर्या पक्षेवषत।
कहायर्या कहारत्री वनदक्षेशक"
(Emphasis supplied by me)
102. The sole purpose of mentioning the aforesaid factual aspects by way of various communications undertaken by company M/s VMPL with BIADA is that within 20 days of having applied to MOC seeking allocation of a captive coal block for establishing an integrated steel plant at Begusarai Bihar the very idea of establishing any such integrated steel plant was completely dropped by the company M/s VMPL. In these circumstances all other issues which have cropped up in the present matter such as completeness of the application submitted by company M/s VMPL in terms of the guidelines issued by MOC or the issue relating to existing capacity or proposed capacity of the end use project as was mentioned in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 109 of 467 application or the issue relating to financial strength of the applicant company or whether accused persons were aware or not that allotment of 300 acres of land to company M/s VMPL by BIADA was subsequently cancelled, all ceases to have any significance in so far as the role of private accused persons is concerned. [I shall be however discussing all these aspects at some length separately also at a slightly later stage of the present judgment].
103. Thus irrespective of the aforesaid issues, the various communications made by company A-1 M/s VMPL with BIADA speak for themselves about the malafide intention on the part of accused persons in procuring allocation of a captive coal block from MOC, Government of India in favour of the company by representing that they intend to establish an integrated steel plant in Begusarai, Bihar, whereas they had actually dropped the very idea of establishing any such plant at all. Accused persons thus knew very well that they never intend to establish any such integrated steel plant at Begusarai Bihar. From the communication dated 31.01.07 [Part of Ex. P-69 (Colly) (D-76)] as reproduced above, it is crystal clear that at around the same time when application for allocation of captive coal block was submitted to MOC by A-1 M/s VMPL, it was communicated to BIADA by it that it will not establish any such integrated steel plant and that it rather proposes to establish an integrated power plant.
104. Before adverting further it will be now worthwhile to refer to the definition of the offence of cheating as given in Section 415 IPC.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 110 of 467 "415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
105. In this regard, it will be also now appropriate to first consider as to what is the meaning of the phrase "deceiving any person" as has been used in the definition of cheating as provided in Section 415 IPC.
106. In the case Swami Dhirendra Brahamchari Vs. Shailendra Bhushan, 1995 Cr. L.J. 1810 (Delhi), Hon'ble Delhi High Court while dealing with the word deceiving as used in Section 415 IPC, observed that generally speaking "deceiving" is to lead into error by causing a person to believe what is false or to disbelieve what is true and such deception may be by words or by conduct. A fraudulent representation can be made directly or indirectly.
Hon'ble Allahabad High Court in the case P.M. Natrajan Vs. Krishna Chandra Gupta, 1975 Cr. L.J. 899 (All.) explained the word "deceive" as indicating inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine.
Hon'ble Supreme Court in the case Ellerman & Bucknall Steamship Co. Ltd. vs Sha Misrimal Bherajee, AIR 1966 SC 1892, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 111 of 467 explained "deceit" as a false statement of a fact made by a person knowingly or recklessly with the intent that it shall be acted upon by another who does act upon it and thereby suffers damage.
107. It was thus stated that in all such cases of deception the object of the deceiver is fraudulent. He intends to acquire or retain wrongful possession of that to which some other person has a better claim. Thus where a person parted away with a property while acting on such a representation of an accused believing in the truth thereof, it clearly amounts to deceiving the person. However, it is also important that the person practicing the deceit knows or has reason to believe the said representation to be false. Though in the true nature of things, it is not always possible to prove dishonest intention by direct evidence. It can be however proved by number of circumstances only from which a reasonable inference can be drawn.
More over the explanation to Section 415 IPC i.e. cheating states that a dishonest concealment of facts is a deception within the meaning of this section.
108. Thus the very act of the accused persons in pursuing with their application before 36th Screening Committee, MOC and even making a presentation on 07.02.2008 before it representing that they intend to establish an integrated steel plant clearly shows the malafide intention of the accused persons in somehow procuring the allotment of a captive coal block from MOC, Government of India. The accused persons by dishonestly representing so thereby CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 112 of 467 deceived MOC, Government of India by inducing it to believe the claims made in their application followed by their presentation and feedback form submitted to the Screening Committee to be true. The malafide intention of the accused persons is thus writ large on the face of record and there is even no requirement of drawing any inference in that regard from the circumstances which even otherwise also stands well proved on record. The facts of the present case rather presents a situation where direct evidence of malafide intention on the part of accused persons in deceiving MOC and the Screening Committee is available.
109. In fact my subsequent discussion would show that even various claims in the application Ex. P-96 (Colly) (D-8) made by the accused persons were false to the knowledge of accused persons. The same will reinforce the conclusion that there existed malafide intention on the part of accused persons in procuring allocation of a captive coal block from MOC, Government of India.
110. It will be pertinent to mention that even while seeking allotment of land from BIADA, the proposal submitted to Government of Bihar by M/s VMPL was for integrated steel project of 6,50,000 MTPA only. The application dated 11.12.2006 submitted to Bihar State Pollution Control Board, Patna [available from page 121-122 in file Ex. P-81 (Colly) (D-88)] under the signatures of A-2 Vikash Patni for obtaining NOC under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, clearly states the proposed production capacity of sponge iron to be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 113 of 467 6,50,000 TPA with a captive power plant of 100 MW only. It was this NOC applied to Pollution Control Board, Bihar which was mentioned at point 24 under the heading "Clearances For the Proposed End Use Plant" in the application Ex. P-96 (Colly) (D-8) submitted to MOC by the company M/s VMPL for seeking allocation of a captive coal block. However for reasons best known to the company M/s VMPL the proposed capacity of the End Use Project i.e. the integrated steel plant was mentioned in the application as 1.1 MTPA.
Thus from the aforesaid facts it becomes clear that right from beginning the company M/s VMPL was having a malafide intention of cheating MOC, Government of India so as to procure allocation of a captive coal block by knowingly making various false and frivolous claims in its application submitted to MOC. As shall be also discussed at a later stage of the present judgment that it is for this reason only no project report of the proposed end use project was filed alongwith the application Ex. P-96 (Colly) (D-8) for no such plant of capacity 1.1 MTPA sponge iron was in fact to be established. It is for this reason only that even the Tecno Economic Feasibility Report as was found in the searches carried out during the course of investigation at the residence of Directors of company M/s VMPL speak of a sponge iron plant of 6,50,000 TPA capacity only and not a plant of 1.1 MTPA capacity.
111. Moreover from the various communications made by company M/s VMPL with BIADA itself it is clear that the company had earlier also applied to MOC for allotment of a captive coal block and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 114 of 467 its applications were considered by the earlier Screening Committees also. However on none of the two occasions the company was able to procure allocation of a coal block in its favour. These facts however does show that company M/s VMPL and its Directors/officers were well aware of procedure undertaken in MOC or in other Administrative Ministries with respect to allocation of a captive coal block in favour of any given applicant company.
112. Be that as it may, the aforesaid facts however clearly establish the existence of malafide intention on the part of company M/s VMPL and its Directors/officers in somehow procuring allocation of a captive coal block by deceiving MOC, Government of India in making them believe the various claims of company to be true even though the accused persons knew them to be false.
113. The aforesaid circumstances also throw light on yet another issue which though I shall be discussing separately also at a slightly later stage that accused persons knew very well that on account of non-compliance with the conditions of allotment of land i.e. failure to deposit of money towards allotment of land and failure to construct boundary wall around the land, the very allotment of land is liable to be cancelled by BIADA and also that the same has been in fact cancelled. I am still not on the contention of the accused persons that the formal letter of cancellation of allotment of land i.e. letter dated 21.09.07 issued by BIADA was never received by them. However from the various communications as were exchanged between BIADA and M/s VMPL as have been reproduced earlier, it is crystal CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 115 of 467 clear that the company was well aware of all the proceedings being undertaken in BIADA regarding allotment of said 300 acres of land. In fact it can not be presumed even for the sake of arguments that after submitting letter dated 28.06.07 in response to letter dated 15.06.07 of BIADA whereby company had sought extension of time to make payment and to construct boundary wall till 31.08.2007, it never pursued the matter further with BIADA. Moreover in the communications of BIADA as were sent to M/s VMPL, it was clearly stated that allotment of land will be deemed to be cancelled, if the company failed to make the payment and construct the boundary wall by the given date. The company M/s VMPL knew very well that they have neither deposited the cost of land or even 30% thereof as was asked for by BIADA and has also not constructed the boundary wall even till 31.08.2017 and thus the allotment of land in their favour is liable to be cancelled.
114. Thus from the aforesaid circumstances, it can not be even remotely presumed that accused persons were not aware of the factum of cancellation of allotment of 300 acres of land by BIADA on account of their failure to comply with the conditions of allotment. In fact the circumstances discussed above clearly show that company M/s VMPL had neither in fact any intention to establish the integrated steel plant nor even the integrated power plant.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 116 of 467 F (i) Actual purpose of seeking allocation of a captive coal block situated in state of West Bengal by A-1 M/s VMPL.
115. A question may however arise as to for what purpose the company was then trying to obtain allocation of a coal block. Though I shall be discussing this issue in detail at a later stage also while discussing the role of accused public servants but it will be suffice to state over here that coal is an important and valuable nationalised natural resource. Thus the foremost intention as is evident from the circumstances was to get hold of such an important natural resource which is of immense importance to various industries. Furthermore. M/s VMPL was admittedly having an existing steel plant in State of West Bengal and for which it was already having a coal linkage from Eastern Coalfield Ltd. It is also a well known fact that coal which is an important raw material for steel industry, if is procured by way of coal linkage from CIL or any of its subsidiary companies, then it is costlier than the coal procured by the industry concerned from captive coal mining. However, State of West Bengal which was the coal bearing state [Moira-Madhujore coal block was situated in State of West Bengal] had not recommended M/s VMPL for allocation of any captive coal block situated in the State. As shall be discussed subsequently also, the company M/s VMPL despite having applied to MOC for allocation of a captive coal block only for its proposed integrated steel plant at Begusarai, Bihar and having been recommended for allotment of captive coal block by the Screening Committee for its plant at Bihar only was however strangely allotted the coal block by Ministry of Coal, Government of India not only for its CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 117 of 467 proposed steel plant at Begusarai in Bihar but also for its existing steel plant at West Bengal. This circumstance rather simplifies the entire puzzle in whose maze the company M/s VMPL was trying to procure allocation of a captive coal block from MOC, Government of India. The company M/s VMPL thus got allocation of a captive coal block from MOC for its West Bengal plant also even though it never applied for the same.
116. At this stage, I would also like to mention that this entire conclusion ought to have been easily reached by the investigating agency itself during the course of investigation of the present case had there been a genuine and honest investigation of the matter. As has been already observed by me in my order dated 15.10.2014 while disagreeing with the closure report filed in the present case that the final report filed by CBI was more like a plea of defence of the accused persons than the report of an investigating officer. It is only on account of such dishonest investigation where the investigating officer has chosen to turn a blind eye to the documents available before it so as to draw a conclusion which is visible to a naked eye that the duty casted upon the Court increases manifold.
In the later part of the present judgment, I shall be highlighting a number of other instances also where on account of defective investigation irrational, illogical and illegal conclusions were drawn by the Investigating agency.
117. Though the act of deceiving MOC and thereby inducing it to CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 118 of 467 allot a captive coal block in favour of company M/s VMPL stands well proved beyond shadows of all reasonable doubts against the accused private parties but I now intend to discuss various other issues also i.e. whether the application of A-1 M/s VMPL was complete in terms of guidelines issued by MOC or whether any information as was submitted to MOC either in the application form or in the feed-back form was false and was also so to the knowledge of company M/s VMPL and its officers/Directors.
F (ii) Whether the application of M/s VMPL was complete in terms of the guidelines issued by MOC governing allocation of captive coal blocks.
118. Before I advert on to discuss the aforesaid issue, it will be pertinent to first mention as to what all documents were required to be annexed with the application by accused/applicant so that any application could be termed as a complete application. The guidelines issued by MOC provided various details/information under different heads i.e. "How to Apply", "Where to Apply", "Processing of application" etc. It also provided various factors on which interse priority was to be decided and also the documents which were to be annexed with the applications and failing which applications will be rejected being incomplete. The said guidelines as are available at page No. 73-94 Ex. PW 1/D (Colly) in file Ex. P-13 (D-17) read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 119 of 467 "How to apply?
I. Application in the prescribed format (five copies) should be filled up. Please note that separate application is to be submitted for each block in case application is made for more than one block. Similarly, separate application is to be submitted in case application is made for more than one end use plant. The details in the format should be filled up in respect of the specific end use plant for which application is made. The details of experience in respect of other plants may be provided in separate sheets.
(i) If the applicant is an end user, the details of the company alongwith the relevant details of the end use plant (for which block is being applied) are to be filled up at relevant places.
(ii) In case the applicant is a JV Mining company (consortium of end user companies) or an Independent Mining company (with firm back-to-back tie up with permitted end users) list of promoter companies or the list of companies with whom tie up for supply of coal has been finalized, quantities to be shared/supplied, and certified copies of agreement/contract etc. are to be provided. The details in respect of finances, end use plant and previous allocation of blocks i.e. SI. No. 8 to 25 and 28, 29 of the application for are to be provided in respect of all the companies with whom the supply agreement is executed. Such details may be provided on separate sheets, in the proforma as given in Form A, with suitable explanation. (Refer Form A) II The following documents should be enclosed along with the application form:
• Certificate of registration showing that the applicant is a company registered under Section-3 of the Indian Companies Act. This document should be duly signed and stamped by the Company Secretary of the Company. (1 copy) • Document showing the person/s who has/have been authorized to sign on behalf of the applicant company while dealing with any or all matters connected with allocation of the sought coal block/s for captive mining with the Government/its agencies. This document should be duly signed and stamped by the Company Secretary of the Company. (5 copies) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 120 of 467 • Certified copy of the Memorandum and Articles of Association of the applicant Company. (5 copies.) • Audited Annual Accounts/reports of last 3 years. (5 copies) • Project report in respect of the end use plant. If the project report is appraised by a lender, the appraisal report shall also be submitted. (5 copies) • Detailed Schedule of implementation for the proposed end use project and the proposed coal mining development project including Exploration programme (in respect of regionally explored blocks) in the form of Bar Charts. (5 copies) • Scheme of disposal of unusable containing carbon obtained during mining of coal or at any stage thereafter including washing. This scheme must include the disposal/use to which the middlings, tailings, rejects etc from the washery are proposed to be put. (5 copies) • The above details are required to be submitted in respect of all the concerned companies in case of SPV/JV or Mining company.
• Demand draft of Rs. 10,000/- in favour of PAO, Ministry of Coal payable at New Delhi.
• A soft copy of details, as filled in the Application Form, is also to be furnished in the specified Database Form (in MS-Excel format) in a CD along with the Application.
III Applications without the above accompaniments would be treated as incomplete and shall be rejected."
"Where to Apply?
The application, in five (5) copies, is to be addressed to Sh. Sanjiv Mittal, Director (CA-I) Ministry of Coal and to be submitted in:
Coal India Limited Office Scope Minar, 5th Floor, Laxmi Nagar District Centre Delhi 110092 between 10.30 AM and 4.00 PM on any working day.
The application should reach the Ministry of Coal latest by 12th of January, 2007."
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 121 of 467 "GUIDELINES FOR ALLOCATION OF CAPTIVE BLOCKS & CONDITIONS OF ALLOTMENT THROUGH THE SCREENING COMMITTEE A. GUIDELINES
1. Applications for allocation of coal blocks for captive mining for the specified end uses shall be made to the Director (CA-I) in the Ministry of Coal in five copies. The application shall be accompanied by the following in addition to any other relevant documentation that the applicant may submit:
• Certificate of registration showing that the applicant is a company registered under Section 3 of the Indian Companies Act. This document should be duly signed and stamped by the Company Secretary of the Company. (1 copy).
• Document showing the person/s who has/have been authorised to sign on behalf of the applicant company while dealing with any or all matters connected with allocation of the sought coal block/s for captive mining with the Government/its agencies. This document should be duly signed and stamped by the Company Secretary of the Company. (5 copies) • Certified copy of the Memorandum and Articles of Association of the applicant Company. (5 Copies) • Audited Annual Accounts/reports of last 3 years (5 copies).
• Project report in respect of the end use plant. If the report is appraised by a lender, the appraised report shall also be submitted. (5 Copies) • Detailed Schedule of implementation (milestones and time- line for each milestone) for the proposed end use project and the proposed coal mining development project in the form of bar charts (5 copies). However, the overall time-frame proposed should not exceed the normative time ceiling prescribed.
• Detailed schedule of exploration (milestones and time-line for each milestone) in respect of unexplored blocks. However, the overall time-frame proposed should not exceed the normative time ceiling prescribed.
• Scheme for disposal of unusable containing carbon obtained during mining of coal or at any stage thereafter including washing. This scheme must include the disposal/use to which the middlings, tailings, fines, rejects, etc. from the washery are CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 122 of 467 proposed to be put. (5 copies) • Demand draft for Rs. 10,000/- in favour of PAO, Ministry of Coal payable at New Delhi.
• A Soft Copy of details, as filled in the Application Form, is also to be furnished in the specified Database Form (in MS-Excel format) in a CD along with the Application. Applications without the above accompaniments would be treated as incomplete and shall be rejected.
2. In respect of fully explored blocks, geological data may be obtained from CMPDIL, NLC or the State agency concerned, as the case may be, on nominal charges. However, full cost of exploration and geological reports would be reimbursed to the agency concerned within six (6) weeks of date of issue of allotment letter.
3. Where only regionally explored blocks are offered for allocation, the detailed exploration/prospecting in the said blocks shall be done by the allocatee company under the supervision of CMPDIL.
4. Replacement of linkage with coal to be produced from the allocated captive coal block can be permitted by the Screening Committee subject to safeguarding the interest of CIL and its subsidiaries.
5. Disposal of production during the development phase of the captive mine to the local CIL Subsidiaries has been allowed at a price to be determined by the Government.
6. In order to promote scientific and proper mining the larger blocks shall not be sub-blocked into smaller ones. Only natural sub-blocks will be formed.
7. Allotment of Captive blocks to consortium of group of companies.
(i) If requirement of coal by an applicant does not match with the reserves in a natural block then clubbing of requirements may be resorted to and in case a number of applicant companies form a consortium for utilisation of a block for their captive use, the same may be considered for allocation under a legally tenable arrangement.
(ii)More than one eligible and deserving companies will be allowed to do captive mining of coal by forming a joint venture coal mining company. The constituent applicant companies would hold equity in the joint venture company in proportion to their assessed requirement of coal and the coal produced would be exclusively consumed in their respective end use projects. Distribution of coal would be in proportion to their CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 123 of 467 respective assessed requirements.
(iii) One or more companies (to be called leader companies) from amongst the selected, could be allowed to do mining of coal in one or more captive blocks and the other companies (to be called associate companies) would get coal from the captive block in proportion to their assessed requirements. The local Coal India subsidiary could facilitate this arrangement by taking a nominal service charge. Leader companies will deliver coal to associate companies at a transfer prices to be determined by the Central Government.
8. Mining of Coal by allottee companies The following dispensations are permitted for mining of coal from captive blocks:
(i) Any of the companies engaged in approved end-uses can itself mine coal from a captive coal block; or
(ii) A company engaged in any of the approved end-uses can mine coal from a captive block through a mining company supplying the coal on an exclusive basis from the captive coal block to the end-user company or to its subsidiary company, provided the end-user company has firm tie up with mining company for supply of coal, supported by legally binding and enforceable contract/agreement.
(iii) An independent coal/lignite mining company can also be allocated a captive block on the condition that the entire coal/lignite so mined would be transferred to an end user company(ies) for their captive consumption in the specified end uses;
Provided that the said mining company has firm back-to-back tie up with the specified end user company(ies), supported by legally binding and enforceable supply contract/agreement.
9. Inter-se priority for allocation of a block among competing applicants for a captive block may be decided as per the following guidelines:
• Status (stage) level of progress and state of preparedness of the projects;
• Net-worth of the applicant company (or in the case of a new SP/JV, the net-worth of their principals); • Production capacity as proposed in the application; • Maximum recoverable reserve as proposed in the application;
• Date of commissioning of captive mine as proposed in the application;
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 124 of 467 • Date of completion of detailed exploration (in respect of unexplored blocks only) as proposed in the application; • Technical experience (in terms of existing capacities in coal/lignite mining and specified end use);
• Recommendation of the Administrative Ministry concerned;
• Recommendation of the State Government concerned (i.e. where the captive block is located);
• Track record and financial strength of the company. Preference will be accorded to the power and the steel sectors. Within the power sector also, priority shall be accorded to projects with more than 500 MW capacity. Similarly, in steel sector, priority shall be given to steel plants with more than 1 million tonne per annum capacity.
B. CONDITIONS OF ALLOTMENT
10. Upon allocation of captive coal block by the Screening Committee the applicant would submit an affidavit in the prescribed format to the effect that all coal mined from the captive block shall exclusively be used in the proposed end use project for which the said block has been allocated and that in case of any slippage in implementation of the end use project or the captive coal mine development project, as per the Schedule of implementation/bar charts submitted and agreed to by the Ministry of Coal, the said block shall be deallocated without any liability to the Government /its agencies, whatsoever.
11. The normative time limit ceilings have been provided to ensure that the coal production from the captive blocks shall commence within 36 months (42 months in case the area is in forest land) of the date of issue of letter of allocation in OC mine and in 40 months (54 months in case the area fall under forest land) from the date of said letter in UG mines.
12. In respect of an unexplored block, the allocattee company shall apply for a prospecting license within three months of the date of issue of allotment. The exploration shall be completed and geological report prepared within two years from the date of issue of prospecting license.
13. Any slippage in meeting with the above time limits, unless previously agreed to by the Screening Committee, for special reasons to recorded in writing, may lead to forfeiture of bank guarantee, or/and cancellation of allocation, previous approval under Section 5(1) of the MMDR Act, 1957 or mining CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 125 of 467 lease, as the case may be.
14. The allocattee company shall be required to submit a bank guarantee equal to one year's royalty amount based on mine capacity as assessed by CMPDIL or NLC, as the case may be, and the weighted average royalty within 3 months of the date of letter of allotment. Subsequently, upon approval of the mining plan the Bank Guarantee amount will be modified based on the final peak/rated capacities of the mine.
15. 50% of the bank guarantee shall be linked to the milestones (time schedule) set for development of captive block, and the remaining 50% to the guaranteed production. The bank guarantee shall be liable to be encashed in the following eventuality:
(i) There shall be an annual review of progress achieved by an allocattee company. In the event of lapses, if any, in the achievements vis-a-vis the milestones set for that year, a proportionate amount shall be encashed and deducted from the bank guarantee.
(ii) Once production commences, in case of any lag in the production of coal/lignite, a percentage of the bank guarantee amount will be deducted for the year. This percentage will be equal to the percentage of deficit in production for the year with respect to the rated/peak capacity of the mine, e.g., if rated/peak capacity is 100, production as per the approved mining plan for the relevant year is 50 and actual production is 35, then (50-35)/100 X 100 = 15% will lead to deduction of 15% of the original bank guarantee amount for that year. Upon exhaustion of the bank guarantee amount, the block shall be liable for de-allocation/cancellation of mining lease.
(iii) The allocatee shall ensure that the bank guarantee remains valid at all times till the mine reaches its rated capacity or till the bank guarantee is exhausted. Any lapses on this count shall lead to de-allocation/cancellation of mining lease.
16. The Company shall obtain the geological report (in respect of fully explored blocks), on payment of requisite charges, from CMPDIL, NLC or the State Government agency concerned, as the case may be, within six weeks of the date of issue of allotment letter.
17. In respect of a fully explored block, the company shall submit a mining plan for approval by the competent authority under the Central Government within six months from the date of issue of the letter of allocation.
18. In respect of an unexplored block, the mining plan shall be submitted for approval by the competent authority CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 126 of 467 within two years and six months from the date of issue of the letter of allocation.
19. Mine opening permission shall be considered only after financial closure for the proposed end use project is achieved.
20. In case a captive block is offered/allocated for washing-cum-end-use all the beneficiated coal from the washery would exclusively be used in the proposed end use project of the allocatee company as approved by the Central Government and not for commercial use or otherwise. All middlings, tailings, or rejects from the washery, as the case may be, and all unusables containing carbon obtained during the mining of coal or in any process thereafter, if any, shall be used for captive consumption only by the allocattee in his proposed end use project or as per the scheme for disposal submitted by the applicant and agreed to by the Screening Committee. In the event that disposal is allowed by the Government, the modalities of disposal of surplus coal/ middlings/ rejects, if any, would be as per the prevailing policy/ instructions of the Government at the relevant point in time and could also include handing over such surplus coal/ middlings/rejects to the local CIL subsidiary or to any person designated by it at a transfer price to be determined by the Government.
PROCESSING OF APPLICATION "The applications received in the Ministry of Coal in five copies, after being checked for eligibility and completeness, would be sent to the administrative Ministry/State Government concerned for their evaluation and recommendations. After receipt of recommendations of the administrative Ministry/State Government concerned, the Screening Committee would consider the applications and make its recommendations. Based on the recommendations of the Screening Committee, Ministry of Coal will determine the allotment."
(Emphasis supplied by me)
119. Thus from a bare perusal of the aforesaid guidelines under the heading "How to Apply", it is clear that every applicant company CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 127 of 467 was required to enclose with its application a project report in respect of the end use plant. Further if the project report were appraised by a lender, then the appraisal report was also to be submitted. Five copies of such a project report alongwith appraisal report was thus required to be submitted. The audited annual accounts/reports of last three years was also required to be submitted in five copies. A soft copy of the details filled in the application form was also required to be furnished in the specified Database Form in a CD alongwith the application. It was also mentioned in the guidelines that applications without the above accompaniments would be treated as incomplete and shall be rejected.
120. It is however the case of prosecution that no project report as was required to be filed in terms of the guidelines issued by MOC, was filed by the applicant company M/s VMPL and on this account alone, the application of M/s VMPL being incomplete was liable to be rejected at the thresh-hold itself. In order to support the aforesaid averment, prosecution has relied upon the application of M/s VMPL Ex. P-96 (Colly) (D-8) to show that it was not accompanied with any project report at all.
121. On the other hand the aforesaid arguments have been vehemently opposed by Ld. Counsels for the accused persons. In fact Ld. Counsel for A-2 Vikash Patni placed strong reliance on the documents Ex. P-81 (Colly) (D-88) recovered during the course of search operation carried out at the house of accused Vikash Patni himself wherein three covering letters vide which different CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 128 of 467 applications of M/s VMPL were allegedly submitted to MOC on 12.01.2007. It was submitted that though no such covering letter is available alongwith the application Ex. P-96 (Colly) (D-8), produced and relied upon by the prosecution but the covering letters which were recovered during the search operation conducted by CBI clearly carries stamp of Coal India Ltd. alongwith corresponding number of the register in which entry of receipt of various applications were being made alongwith the signatures of an official who received the same. It was submitted that in all the three covering letters which are part of documents Ex. P-81 (Colly) (D-88), it is clearly mentioned that project report in respect of end use plant - 5 copies were being submitted alongwith the application form. Details of various other documents as were submitted alongwith the application was also mentioned in the said covering letters. It was thus submitted that from the said covering letters, it is clearly evident that project report was indeed filed by company M/s VMPL alongwith its application as was submitted to MOC. It was also submitted that from the deposition of PW-12 N.R. Dash and the recommendation sent by Ministry of steel to MOC after examining the applications received by it also it is clear that a Techno Economic Feasibility Report (TEFR) was indeed available with Ministry of Steel with respect to the end use plant to be established by M/s VMPL at Begusarai, Bihar. It was also submitted that even during the course of search operation at the premises of accused persons such a TEFR was recovered by the CBI and which fact again goes to show that the same was duly filed alongwith the application by M/s VMPL. While referring to the deposition of PW-1 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 129 of 467 V.S. Rana, the then Under Secretary, MOC it was submitted that he in his cross-examination stated that as the applications received were voluminous in nature and thus it may be possible that while shifting the said voluminous documents/papers from Scope Minar, Laxmi Nagar to Shashtri Bhawan, the project report attached with the application may have been misplaced.
122. In the aforesaid circumstances, it was submitted by Ld. Defence Counsel that from the documents relied upon by the prosecution itself and the evidence of prosecution witnesses, it has been clearly established that a Project Report was indeed available with Ministry of Steel alongwith the application of M/s VMPL. Ministry of Steel had admittedly seen and examined the TEFR filed by the company. It was thus submitted that the application Ex. P-96 (Colly) (D-8) produced and relied upon by the prosecution was clearly an incomplete document and no reliance can thus be placed on such an incomplete document to draw any conclusion much less any adverse inference against the accused persons.
My Discussion
123. At the outset, I may state that though the arguments so put- forth by Ld. Counsels for the accused persons appears to be very forceful but a closure scrutiny of the documents of the present case and the evidence of prosecution witnesses examined will clearly show the fallacy in the said arguments.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 130 of 467
124. Admittedly the application Ex. P-96 (Colly) (D-8) was submitted by M/s VMPL in the prescribed proforma as was issued by MOC. In the said application which has been admitted to be genuine u/s 294 Cr.PC by accused Anand Mallick and is stated to be the same application which was submitted to MOC, under his signatures, the following information has been mentioned at point No. 21:
21. DPR FOR THE END USE PROJECTS Yes No (I) DPR prepared No (ii) If yes, whether appraised by FI
125. Thus in view of the aforesaid facts mentioned in the application form itself by the company that no Detailed Project Report (DPR) has been prepared so it is difficult to even presume as to how such a report could have been even filed with the application. In fact it has never been the case of accused persons or claim made by them at any stage of the trial that the contents of the application much less those mentioned at point No. 21 were wrong or were incorrectly mentioned. Even nothing has been mentioned much less explained that if a Project Report was indeed filed alongwith the application then why at point No. 21 of the application it was stated that DPR has not been prepared.
126. Similarly it will be now also pertinent to refer to the "Form for Feed Back" as was submitted to the Screening Committee on 07.02.08 on behalf of company M/s VMPL under the signatures of A-3 Anand Mallick and that too after more than one year of submitting the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 131 of 467 initial application. In the said "Form for Feed Back" i.e. Ex. P-98 (Colly) (D-37) also at point No. 8, the following information was mentioned:
"8. DPR for end use projects
(i) DPR prepared: Under appraisal.
(ii) If yes, whether appraised by FI.:"
127. Thus from a bare perusal of the Form for Feed-Back also it is clear that even after 13 months of submitting the application, the detailed project report was not yet filed by the company with MOC as the same was still stated to be under appraisal with the financial institution (FI). The question which however arises for consideration is as to in what circumstances the acknowledgement of receipt of application of the company then came to be given on a letter which specifically stated that various documents mentioned over there including project report in five copies have been enclosed. [The aforesaid question arises only if it is presumed that the letter being so relied upon by the prosecution was indeed the covering letter on which receipt of application in question was given by the MOC officials.]
128. The answer to the aforesaid issue is very short and crisp and is apparent on the face of record itself. PW-1 V.S. Rana, the then Under Secretary, MOC stated that when the applications were being received at Scope Minar, Laxmi Nagar, New Delhi then no record was maintained as to how many annexures or number of pages were CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 132 of 467 annexed with the main application form. It has also come in his evidence that on the last date of receipt of applications i.e. on 12.01.2007 there was huge rush of applicant companies on account of which number of counters were created for receiving the applications. In fact a perusal of register Ex. P-11 (D-15) shows that on 12.01.2007 itself about 785 number of applications were received.
129. Thus from the aforesaid circumstances, it is clear that as the guidelines issued by MOC governing allocation of captive coal blocks were available on the website of MOC and the same specified as to what all documents are to be filed alongwith the application so the applicant company M/s VMPL was certainly aware of all the documents which were required to be annexed with the applications. Thus in order to escape the attention at the time of receipt of applications itself that any of the requisite document is missing, the details thereof were duly mentioned on the covering letter of the application in accordance with the guidelines issued by MOC. Accordingly the MOC officials gave their acknowledgement of receiving the applications on the said covering letter itself. The said conclusion appears to be a natural corollary of the overall facts and circumstances in as much as the accused persons ought to have otherwise explained as to in what circumstances it was stated in the application that no DPR has been attached and even after 13 months while submitting the feed-back form it was still stated that the DPR is under appraisal and no such DPR was admittedly filed even with the feed-back form.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 133 of 467
130. No reason worth the name has been put forth by the accused persons in this regard and I have no reason to disbelieve the details as have been filled-up in the application as regard DPR. In fact PW-1 V.S. Rana, Under Secretary, CA-1 Section, MOC in his cross- examination conducted by Ld. Counsel for A-2 Vikash Patni stated as under:
"It is correct that at the time of receipt of applications in Scope Minar, Laxmi Nagar no record was maintained as to how many annexures of number of pages were annexed with the main application form."
131. There are however other very cogent reasons also which also supports the conclusion as to why no such DPR was filed by the accused persons alongwith the application. As already discussed and demonstrated that the company M/s VMPL in fact never intended to establish any such integrated steel plant at Begusarai, Bihar. This fact also explains as to why even after expiry of 13 months of submitting the initial application no such DPR was submitted by the company and was merely stated to be under appraisal.
132. Moreover it will be also pertinent to mention that merely because such covering letters were recovered by CBI during the course of search operation carried out at the house of A-2 Vikash Patni and the same were placed on record of the present case by CBI does not imply that the authenticity of said documents stands established on record or the same have been accepted to be correct by the prosecution. Since accused persons are placing reliance upon the said documents to rest their plea of defence so the onus to prove CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 134 of 467 the same was upon them only. The facts and circumstances available on record only show that such a document was indeed recovered in the house search of accused Vikash Patni. This fact however does not prove that the documents so recovered contains correct facts only. Accordingly it was for the accused only to prove the correctness of the facts stated therein and especially when he is placing reliance upon the said documents to support his plea of defence.
133. Coming now to another limb of argument put forth by Ld. Defence Counsel that as Ministry of Steel had submitted its recommendations to MOC on the basis of TEFR as was available with it so it is clear that such a TEFR was available with Ministry of Steel. It was thus submitted that as admittedly one copy of applications was sent to Ministry of Steel by MOC only so there is no reason to presume that such a TEFR was not filed alongwith the application submitted to MOC. It was thus submitted that application Ex. P-96 (Colly) (D-8) was thus not a complete document. In this regard reliance was also placed upon the deposition of PW-1 V.S. Rana that as the applications were subsequently shifted from Scope Minar, Laxmi Nagar to MOC office, Shastri Bhawan so it may be possible that while shifting the voluminous applications some documents may have gone missing.
134. Before I advert on to discuss the aforesaid issue I may however again mention that the present case suffers from the vires of dishonest and defective investigation. As shall be evident from my subsequent discussion, no efforts seems to have been made during CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 135 of 467 the course of investigation by the IO as to in what circumstances any such TEFR came to be available with Ministry of Steel. In fact neither any such application of M/s VMPL or even any such TEFR as was allegedly available with Ministry of Steel was collected during the course of investigation. Moreover instead of putting relevant questions in this regard to the concerned witnesses, the IO in the statement u/s 161 Cr.PC of PW-12 N.R. Dash as was recorded during the course of investigation chose to show him a TEFR alongwith the application of M/s VMPL and questioned him as to on what basis various facts were stated in the recommendations of Ministry of Steel which were sent to MOC under his signatures. Admittedly one such TEFR was by then already recovered by the IO during the course of search operation carried out at the premises of the accused persons but strangely enough in the statement u/s 161 Cr.PC of PW-12 N.R. Dash there is no mention as to from where the said TEFR being shown to the witness came into the possession of IO. Even the application shown to the witness was one which was collected from MOC. No explanation has been at all put forth by the IO as to why the application available with Ministry of Steel much less the TEFR as was considered by Ministry of Steel in giving its recommendations was not collected during the course of investigation.
135. The aforesaid fact was required to be mentioned in the statement u/s 161 Cr.PC itself as a bare perusal of statement u/s 161 Cr.PC of Sh. N.R. Dash clearly show that it has been so ambiguously CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 136 of 467 recorded so as to give an impression that the TEFR being shown is the same as is already available with the application of the company M/s VMPL. It is primarily for this reason only that it has been vehemently argued on behalf of the accused persons that it was the same TEFR as was available with Ministry of Steel which was shown to the witness by the IO during the course of investigation.
Since no such application or TEFR was admittedly collected from Ministry of Steel by the IO during the course of investigation so it can not be even remotely presumed that the TEFR available with Ministry of Steel was shown to the witness when his statement u/s 161 Cr.PC was recorded.
136. There is however yet another interesting aspect of the matter. Even if it is believed that a TEFR was indeed available with Ministry of Steel with the set of application as was sent to it by Ministry of Coal then also it is beyond comprehension as to how the said TEFR was relating to the end use project referred in to the application of M/s VMPL.
137. Admittedly the application Ex. P-96 (Colly) (D-8) stated the following particulars about the proposed end use project.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 137 of 467 III PROPOSED END USE (PROJECT) POWER/IRON & STEEL/SPONGE IRON/CEMENT (Tick the main end use project, associate end use not to be indicated) Capacity of end use plant LINKAGE (MW)/ Quantity LINKAGE LINKAGE mtpa mtpa Grade Source .13 MTPA 86.4 F-GRADE MCL 11 EXISTING CAPACITY 12 PROPOSED CAPCITY 1 MTPA 13 ULTIMATE CAPACITY (TOTAL) 1.1 MTPA 14 ROM COAL REQUIREMENT 2.28 MTPA 15 LOCATION (District, State) BEGUSARAI, BIHAR
138. However the TEFR Ex. P-83 (Colly) (D-90) talks of a steel manufacturing project having 4 x 500 TPD sponge iron kilns only [It is the same TEFR which is being referred to by the accused persons and was also allegedly referred to by Ministry of Steel officers while making their recommendations to MOC. This very TEFR was also shown to PW N.R. Dash by IO Insp. Rajbir Singh while recording his statement u/s 161 Cr.PC]. The total capacity of said sponge iron is thus stated to be 65000 TPA only. [Further in the said TEFR the existing capacity of sponge iron plant is stated as 65000 TPA and the expansion under implementation was also stated to be 65000 TPA sponge iron. The TEFR further states the existing capacity to be in West Bengal. As regard proposed end use project at Bihar the capacity in the TEFR under the heading Executive Summary [at page 2 in Ex. P-83 (Colly) (D-90)] was mentioned as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 138 of 467 12 PROPOSED PROJECT AT 4 x 500 TPD Sponge Iron Kilns Bihar 100 MW Captive Power Plant 2,50,000 TPA Blast Furnace With Billet Casters.
139. Though I shall be discussing various other aspects relating to the aforesaid details mentioned in the TEFR at a slightly later stage of the present judgment also but apparently, it is beyond any reason or logic as to how the TEFR Ex. P-83 (Colly) D-90 [Admittedly recovered during the course of search operation carried out at the house of accused Vikash Patni] can relate to the proposed end use project mentioned in the application form Ex. P-96 (Colly) (D-8). Nothing has been at all argued or explained in this regard during the course of entire trial on the part of accused persons as to when the capacity of the proposed end used project was mentioned in the application as 1 MTPA then how a TEFR for an end use project of proposed capacity 65000 MTPA can relate to the same. In fact a perusal of the records of the present case shows the most casual nature of functioning on the part of officers of various departments of Government of India be that of MOC or even that of Ministry of Steel. Even in the recommendations sent to MOC by Ministry of Steel under the signatures of PW-12 N. R. Dash vide OM dated 06.12.2007, the recommendations qua M/s VMPL were sent as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 139 of 467 S. Name of the Inter se priority for Project capacity Coal No. company & the applied block Requirement Location Existing Proposed Capacity Total Misc.
Capacity Capacity Remarks
As per the format As per MOS's
norms (to be
commissione
d before Dec,
2010
122 Vikash Metal 1. Rajhara North Existing Proposed capacity :- 1.00 0.6 for Bihar 1.168 Category
& Power Ltd. 2. Moira-Madhujore Capacity:- mtpa at Begusarai, Bihar unit + 0.13 VI
at Begusarai, 3. Andal East 0.13 mtpa at The company has proposed for West
Bihar West Bengal to set up 4x500 TPD sponge Bengal Unit.
iron kilns and is likely to
commissioned by February,
2008.
140. It is beyond comprehension as to in what circumstances despite having noted that the proposed capacity of the plant as mentioned in the application form is 1 MTPA but still the details mentioned in TEFR for a sponge iron plant of 65000 MTPA was considered. Though it can be argued on behalf of Ministry of Steel officers that since in terms of the details mentioned in the TEFR the company M/s VMPL was meeting the criteria (internal guidelines) laid down by Ministry of Steel and accordingly in their recommendations complete details were mentioned for the information of Screening Committee be that of the application form or that of the TEFR. However even if the said explanation is accepted for the sake of arguments to be correct then also the moot question which arises for consideration is whether the said TEFR at all related to the proposed end use project as was mentioned in its application by the company. If at all Ministry of Steel was considering as to whether the given applicant company i.e. M/s VMPL proposes to achieve the desired minimum production level by the outer limit fixed by Ministry of Steel then also it ought to have seen as to whether the TEFR being CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 140 of 467 considered by them is of the same proposed end use project mentioned in the application form by the company or not. At least the TEFR ought to have mentioned the further details as to how and till what time the company intends to achieve its full capacity. No such details are there in the TEFR as the same pertained to a project of 65000 TPA capacity only. [Thus, even if it is presumed that the said TEFR was indeed filed alongwith the application then as the details mentioned in the application form did not co-relate in any manner with the annexure i.e. TEFR allegedly filed by the company, so this fact ought to have been also highlighted by Ministry of Steel in its comments sent to MOC.] Thus it is clear beyond shadows of all reasonable doubts that the TEFR being referred to by the accused persons could not have been the TEFR pertaining to the end use project mentioned in the application Ex. P-96 (Colly) (D-8), if at all any such TEFR was filed. In fact as shall be discussed at a later stage also that even the MOC officers in the Screening Committee or even later on in MOC itself also did not choose to mention the said fact and for reasons best known to them chose to ignore or conceal the said fact.
141. Thus in view of the apparent and inherent contradictions in the claims made by the accused persons, this Court has all the reasons to believe that no such TEFR was at all filed alongwith the application. In fact at this stage, I may also mention that even otherwise a TEFR is a materially different document from a " Project Report" as was required to be filed by the company in terms of the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 141 of 467 guidelines issued by MOC.
142. A Techno Economic Feasibility Report [TEFR] determines the technical feasibility and financial viability of the project. It assess the risks associated with the project and enumerate imminent actions that are required to be taken.
On the other hand a project report is a document which gives an account of the project proposal to ascertain the prospects of the proposed plan/activity. The project report contains detailed information about land building required, manufacturing capacity per annum and the manufacturing process. Similarly Detailed Project Report (DPR) is prepared for the investment decision making approval but also for execution of the project and for preparation of plan. Detailed project report is a complete document for investment decision-making, approval and planning.
Thus the mere filing of TEFR would not have even otherwise fulfilled the requisite conditions of MOC guidelines which mandated that alongwith the application the project report be also filed.
143. In fact it has also been argued by Ld. Counsels for the accused persons that in terms of the guidelines issued by MOC, soft copy of the details mentioned in the application form were also provided in a CD. It has been submitted by Ld. Counsel for A-2 Vikash Patni that the said CD was admittedly available with CMPDIL and the same also shows details of all documents filed alongwith the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 142 of 467 application.
However as per documents available in D-44 i.e. Ex. P- 37 (Colly) [Admitted to be genuine u/s 294 Cr.PC by accused Vikash Patni himself], the said data available in the CD was also compiled in a database by CMPDIL. In the said database also as regard the status of DPR it is specifically mentioned that no such DPR is available. The aforesaid record of CMPDIL thus again goes to support the conclusion that no such detailed project report (DPR) was at all filed alongwith the application by the company M/s VMPL. It thus can not be presumed even for the sake of arguments that the application Ex. P-96 (Colly) (D-8) relied upon by prosecution is an incomplete document. The said argument of Ld. Counsels for A-2 Vikash Patni and A-3 Anand Mallick thus does not hold ground at all.
144. At this stage, it would be also pertinent to mention that even in its communication dated 12.08.2006 [Available at page 3 in Ex. P- 81 (Colly) (D-8)], Department of Industries, Government of Bihar had while conveying to A-3 Anand Mallick, the approval of the proposal for setting an integrated steel plant had also informed that no project report has been submitted.
145. It is in the light of aforesaid discussion, if the other arguments of Ld. Counsel for accused Vikash Patni and Anand Mallick are seen that alongwith the application the audited annual accounts/reports of last three years (5 copies) of Impex Group of companies were also filed then I may again state that the said submission is even contrary CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 143 of 467 to the records relied upon by accused persons themselves. Admittedly in the application Ex. P-96 (Colly) (D-8) or even in the covering letter as has been relied upon by the accused persons there is completely no mention of Impex Group of companies being in any manner related to M/s VMPL. Even in the Memorandum of Association and Articles of Association of M/s VMPL as were annexed with the application Ex. P-96 (Colly) (D-8) there is no mention at all of Impex Group of Companies. In these circumstances it is again beyond comprehension as to how it can be presumed even for the sake of arguments that any such audited annual accounts/reports of Impex Group of Companies of which M/s VMPL is stated to be a group company was also filed alongwith the application. In fact the guidelines issued by MOC for the purposes of ascertaining interse priority amongst the competing applicant companies required details in respect of finances etc qua the promoter companies only in the cases of joint venture companies and not otherwise. Thus when M/s VMPL was never stated to be a joint venture company so the question of filing of details of finances of its promoter companies did not arise. Similarly when the application was also completely silent that M/s VMPL is a group company of M/s Impex Group of Companies so the question of filing of balance sheets of Impex Group alongwith the application did not arise.
146. Thus it is clear that it was only the audited annual reports of M/s VMPL which were annexed with the application and had there been another set of audited annual accounts/reports of Impex Group CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 144 of 467 of Companies annexed then the same would have been separately mentioned in the covering letter itself as has been relied upon by the accused persons themselves. Moreover even if it is presumed for the sake of arguments that the audited annual accounts/reports of Impex Group of Companies were filed alognwith the application then also the said reports could not have been considered or taken into consideration at all when there was no mention at all in the application that applicant company M/s VMPL was a SPV/JV or a group company of Impex Group of Companies. Thus the said reports even if filed were completely extraneous documents in so far as the claims/figures mentioned in the application form were concerned.
147. Accused persons have thus clearly failed in establishing availability of any such document(s) even for the purposes of preponderance of probabilities. On the other hand from the evidence led by the prosecution coupled with the documents proved on record it stands proved beyond shadows of all reasonable doubts that neither the project report nor the relevant documents of financial statement of applicant company A-1 M/s VMPL in support of the claims made in the application were filed on record alongwith its application Ex. P-96 (Colly) (D-8) by company M/s VMPL. It thus stands proved that the application Ex. P-96 (Colly) (D-8) submitted to MOC on behalf of A-1 M/s VMPL was an incomplete application in terms of the guidelines governing allocation of captive coal blocks issued by MOC and was thus liable to be rejected in MOC itself and was thus not to be processed further much less sending copies CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 145 of 467 thereof to Ministry of Steel, State Government of West Bengal, Bihar or to CMPDIL etc. The said application accordingly ought not to have been even put up before the Screening Committee for its consideration. [However at a later stage of the judgment while discussing the role of accused public servants I shall be again revisiting this aspect while discussing as to whether applications were at all checked in MOC for their completeness or eligibility or not.] F (iii) Whether the company M/s VMPL mentioned inflated figures of financial strength in its application.
148. In the aforesaid circumstances the entire issue boils down to only one proposition i.e. whether the details of turnover, profit and net-worth as were mentioned in the application in column 8, 9 and 10 tallied with the details of finances as were mentioned in the audited annual accounts/reports of M/s VMPL filed alongwith the application or not.
In this regard it is an undisputed case of prosecution that these figures mentioned in the application did not tally with the details of finances as were mentioned in the audited annual accounts/reports of M/s VMPL. It is the case of accused persons that the figures of financial strength as were mentioned in the application were that of Impex Group of Companies and not only of M/s VMPL.
149. Thus in view of my aforesaid discussion it stands well proved that the figures of turnover, profit and net-worth as were mentioned in CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 146 of 467 the application were highly inflated and also that neither they correlated with details mentioned in the annexures to the application nor were justifiable in terms of the guidelines issued by MOC governing allocation of captive coal blocks.
150. The sum and substance of the aforesaid discussion as regard non-filing of detailed project report or wrong mentioning of figures of financial strength of the applicant company in the application is that the company M/s VMPL dishonestly represented to MOC, Government of India that all the requisite documents have been filed alongwith the application. Similarly the company M/s VMPL misrepresented about its financial strength by mentioning highly inflated figures of its turnover, profit and net-worth and thereby making Screening Committee, MOC to believe in its higher financial capability to establish the proposed end use project. [I am not at all entering into the issue as to whether the figures of financial strength mentioned in the application tallied with that of Impex Group of Companies or not, since the same will be completely an exercise in futility especially in view of my aforesaid discussion].
F (iv) Whether A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick were aware of the factum of cancellation of allotment of 300 acres of land to A-1 M/s VMPL by BIADA.
151. There is yet another misrepresentation made by applicant company M/s VMPL before the Screening Committee. As earlier also mentioned that in the application Ex. P-96 (Colly) (D-8) submitted to MOC on 12.01.2007, it was claimed by the company that it has been CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 147 of 467 allotted 300 acres of land by BIADA. The said claim was again reiterated before the Screening Committee in the feed-back form submitted on 07.02.08. However as already discussed and demonstrated that the said allotment of 300 acres of land in favour of M/s VMPL was canceled by BIADA vide order dated 21.09.07 after the company M/s VMPL failed to deposit the cost of land and also failed to construct the boundary over the land.
152. The accused persons i.e. A-2 Vikash Patni and A-3 Anand Mallick have however claimed that at the time of presentation before the Screening Committee on 07.02.2008 they were not aware about any such order of cancellation of allotment of land issued by BIADA for they never received the same. As regard recovery of cancellation order dated 21.09.07 from their premises in the search operations carried out by CBI during the course of investigation, it was claimed that when during the course of preliminary enquiry registered by CBI, enquiry was made from them regarding this issue then the copy of order dated 21.09.07 was obtained by them from BIADA office and a copy thereof was supplied to CBI while retaining one copy with them.
My Discussion
153. In this regard I may state that I have already discussed and demonstrated at length in the earlier part of the judgment that regular correspondence was being undertaken by company M/s VMPL with BIADA seeking extension of time for depositing the cost of land and for time to construct the boundary wall. One such communication CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 148 of 467 undertaken by company M/s VMPL with BIADA was dated 28.06.2007, wherein extension of time was sought from 30.06.07 to 31.08.07. Thus as earlier also mentioned that it can not be believed even for the sake of arguments that the company M/s VMPL despite undertaking regular and repeated correspondence with BIADA so that allotment of land in its favour may not be cancelled suddenly stopped interacting with BIADA and did not care to even ascertain as to whether their request for extension of time to deposit the cost of land or request to extend the time for construction of boundary wall was accepted by BIADA or not.
154. Moreover, prosecution in order to prove its case that order dated 21.09.07 issued by BIADA for cancellation of allotment of land in favour of company M/s VMPL was indeed received by the accused persons examined PW-2 Anil Kumar Thakur, the then Executive Director, BIADA under whose signatures the order dated 21.09.07 for cancellation of allotment of land was issued. It also examined PW-4 Devanand Dutta, the official of BIADA who was posted in dispatch section of Dharbhanga office of BIADA and had actually dispatched the order dated 21.09.07 to M/s VMPL by registered post.
155. While PW-2 Anil Kumar Thakur proved various correspondence which were undertaken between BIADA and company M/s VMPL regarding allotment of land and thereafter BIADA calling upon the company to deposit the cost of land and also to construct the boundary wall. He also proved the order dated 21.09.07 Ex. PW 2/G issued to M/s VMPL under his own signatures whereby CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 149 of 467 the land allotted in favour of M/s VMPL was cancelled. Strangely enough no suggestion was even put to the said witness either on behalf of A-2 Vikash Patni or A-3 Anand Mallick that no such letter was ever received by them or by the company M/s VMPL. It was also not even suggested to him that the registered office of M/s VMPL where order dated 21.09.07 was allegedly sent was under renovation during the said period as is being now claimed by the accused persons in the present trial.
156. Similarly PW-4 Devanand Dutta deposed that order dated 21.09.07 was sent to M/s VMPL at the address "M/s VMPL, Sh. Vikash Patni, Managing Director, 35-Chittaranjan Avenue, 6 th Floor, Kolkata-700012" through registered post by him after making necessary entry in the dispatch register. He further stated that the relevant postal receipt issued in this regard by Ranipur Post office was also duly pasted in the register by him. In his cross-examination he also deposed that the said letter was not received back as undelivered. However once again no suggestion was even put to the said witness either on behalf of A-2 Vikash Patni or A-3 Anand Mallick that no such letter was ever received by the company. In fact the correctness or veracity of the dispatch register Ex. PW 4/A-1 or that of his deposition was even not questioned.