Point of Law : Public servant – Misconduct - there may not always be direct evidence to the conspiracy, but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence.

JUDGMENT :

The petitioners in all these four petitions are accused in FIR No. 12/2015 dated 21.02.2015 registered under Sections 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, Svt. 2006 [‘the Act’] and 120-B RPC with the Police Station, Vigilance Organization, Kashmir [‘VOK’]. Petitioner Hammid Ahmad Wani is accused in FIR No. 11/2015 also. Although the petitioners have been ascribed different role in the commission of alleged offences, yet, they are aggrieved of registration of FIRs in question against them almost on identical grounds. It is because of this reason, all the petitions, though heard on different occasions, have been taken up for disposal together by this common judgment.

2. CRM(M) No. 187/2021 has been filed by Hammid Ahmad Wani, who, at the relevant time, was ex-officio Member Secretary of Building Operation Control Authority [‘BOCA’] and had played important role in grant of building permission in favour of beneficiaries i.e. Waseem Mushtaq and others. He has filed another petition i.e. CRM(M) 186/2021 wherein he has challenged FIR 11/2015 dated 20.02.2015 registered with Police Station, VOK. CRM(M) 192/2021 has been filed by one Feroz Ahmad Mir, who at the relevant time, was a Member representing Lakes and Waterways Development Authority, Srinagar [‘LAWDA’] which cleared Building Permission No. 58 of 2008 dated 28.04.2008 in favour of beneficiaries Waseem Mushtaq and others. And CRM(M) No. 163/2021 is a quashment petition filed by the beneficiaries of Building permission i.e Waseem Mushtaq and ors.

Factual matrix of the matter

3. FIR No. 12/2015, impugned herein has arisen from Building Permission No. 58/2008 dated 28.04.2008 granted in favour of the beneficiaries Waseem Mushtaq and others on the allegation that the petitioners-Public Servants Hammid Ahmed Wani and Feroz Ahmad Mir who were Member Secretary and Member representing LAWDA in the BOCA, abused their official position and in furtherance of criminal conspiracy, granted Building Permission No. 58 of 2008 dated 28.04.2008 in favour of petitioners Waseen Mushtaq and others for construction of four storeyed commercial complex with revolving restaurant and basement for parking purpose on the plot of land under Survey Nos. 885 min and 930 min situated opposite Exhibition Ground, Srinagar. This permission, it is alleged, was granted in supersession of earlier four building permissions i.e permission No. 691/2002 dated 20.03.2002 in favour of Mushtaq Ahmad Ganai and his two sons for construction of four storeyed commercial building on land under survey No. 885 min, permission No. 378/2002 dated 14.08.2002 in favour of Waseem Mushtaq and Naseem Mushtaq for construction of three storeyed commercial building on land under Survey No. 930 min, permission no. 379/2002 dated 14.08.2002 in favour of Waseem Mushtaq and Naseem Mushtaq for construction of three storeyed commercial building on land under survey No. 885 min and permission No. 381/2002 dated 14.08.2002 in favour of Waseem and Naseem for construction of three storeyed commercial building on land under Survey No. 930 min.

4. The impugned FIR, it is claimed, was registered pursuant to verification conducted by the VOK after it received written complaint regarding various illegal structures coming up in Srinagar city. During verification by the VOK, it came to light that BOCA of Srinagar Municipal Corporation had granted building permissions to some builders at Exhibition Ground and Bishamber Nagar in contravention of norms in vogue for such building permission. One such permission i.e Building Permission No. 58 dated 28.04.2008 issued in favour of petitioner Mushtaq Ahmad Ganai and his two sons came under scrutiny of the VOK. In the preliminary enquiry, VOK found that the officials of BOCA by issuing building permission No. 58 dated 28.04.20085 had regularized gross violations on the part of building owners, who, instead of raising four separate commercial complexes in accordance with earlie