Justice Sabharwal's Defence Gets Murkier

Justice Sabharwal's Defence Gets Murkier http://archive.tehelka.com/story_main34.asp?filename=Ne220907JUSTICE.asp Senior advocate Prashant Bhushan, part of the eminent panel that framed allegations against former Chief Justice of India YK Sabharwal, rebuts the retired judge’s rejoinder point by point Using the strategy of a clever and street-smart defence lawyer, Justice YK Sabharwal’s defence of the serious charges levelled against him sidesteps the inconvenient and emphasises the irrelevant to evoke sympathy. To examine the adequacy of his defence, we need to see his defence against the gravamen of each charge against him. CHARGE NO. 1 That his sons’ companies had shifted their registered offices to his official residence. SABHARWAL’S RESPONSE: That as soon as he came to know he ordered his sons’ to shift them back. OUR REJOINDER: This is false. In April 2007, in a recorded interview with the Mid-Day reporter MK Tayal he feigned total ignorance of the shifting of the offices to his official residence. In fact, the registered offices were shifted back from his official residence to his Punjabi Bagh residence exactly on the day that the Business Park Town Planners Ltd (BPTP) mall developers became his sons’ partners, making it very risky to continue at his official residence. CHARGE NO. 2 That he called for and dealt with the sealing of commercial property case in March 2005, though it was not assigned to him. It is only the Chief Justice (CJ)who can assign pending cases to various judges. He was not the CJ at that time. Justice Sabharwal does not answer this charge. CHARGE NO. 3 That he did this exactly around the time that his sons got into partnerships with mall and commercial complex developers, who stood to benefit from his sealing orders. HIS RESPONSE: That they were his sons’ friends. That Harpawan Constructors which was set up by his sons with the mall developer Purushottam Bagheria did not do any business. In fact the courts under him got Bagheria’s 1 MG road mall demolished. That his sons are not developing shopping malls but only an IT park. OUR REJOINDER: If so many mall and commercial complex developers were his sons’ close friends, then he should not have dealt with the case anyway since that creates an immediate conflict of interest. Moreover, why should they go into partnership with these developers who stood to benefit from Justice Sabharwal’s orders, and that too exactly at the time when he seizes control of the sealing of commercial property case and starts dealing with it. He says that the company set up by his sons in partnership with Bagheria has not done any business. If so, why was this new company set up for developing commercial complexes in partnership with this builder? In an interview with Zee News, Justice Sabharwal claims credit for the judiciary under him ordering the demolition of the illegal 1 MG road mall owned by Bagheria. But then why do his sons enter into partnerships with such an illegal builder whose buildings have had to be demolished by the Judiciary? And immediately after this partnership with the Sabharwals, Bagheria went on to announce the construction of “Square 1 mall” in Saket as the most fashionable mall in India. And all the fashion designers who had their shops and outlets at 1 MG road went on to buy space in the Square 1 mall. What is important to note here is that Bagheria and his partners at 1 MG road had already parted with all the space on 1 MG.The demolition thus hurt the designers and others who had bought shops there, but did not hurt Bagheria who may have benefited from it by clearing the land of his tenants and getting them to buy space at his new malls in Saket and elsewhere. An IT park is also a commercial complex like any other. Many commercial establishments sealed were IT centres and BPOs which were forced to buy space in IT parks like that being constructed by his sons and their partners. CHARGE NO. 4 That the Union Bank of India gave a loan of Rs 28 crore to his sons’ company: Pawan Impex on a collateral of plant and machinery and other moveables at the site of their proposed IT park, which were non-existent. HIS RESPONSE: That his sons’ had a credit facility of Rs 75 crore. OUR REJOINDER: If that were the case, what was the need for mortgaging non-existent assets for obtaining this loan? Moreover, the banks’ senior manager is on record saying that the loan was given on the basis of projected sales to prospective customers. CHARGE NO. 5 That because of the obvious conflict of interest, he could not have dealt with this case. HIS RESPONSE: That his orders have never benefited his sons. OUR REJOINDER: His orders of sealing lakhs of commercial properties clearly forced those establishments to buy or rent space in commercial complexes like those that his sons’ company were constructing; and shopping malls etc that their friends and partners were constructing. There was a clear conflict of interest and his orders have clearly benefited his sons and their partners. CHARGE NO. 6 That a large number of industrial and commercial plots were allotted in Noida by the UP government to his sons’ companies, at prices far below the market price. In particular, several huge plots were allotted between December 2004 and November 2006 by the Mulayam Singh/Amar Singh government, while he was dealing with the Amar Singh tapes case, and had stayed the publication of those tapes on the behest of Amar Singh. HIS RESPONSE: That some of the plots were allotted by earlier different governments. That the prices were not far below the market price. That the allotments were made in the normal course to his sons who were entrepreneurs and were providing employment to hundreds of people in Noida. OUR REJOINDER: The allotments are definitely not in the normal course. How can three plots of one acre each be allotted to one company on the same date? In fact, these allotments are made at a time when the share capital of this company was just Rs 1 lakh and it had no track record of making any IT park or doing any business whatsoever. They have been allotted within days of the application with no procedure of draw of lots or any other system being followed, other than a bogus interview. The rate of Rs 3,700 per square metre was far below the market rate, and anybody including us would be happy to buy these plots at three times the allotment rate today. The huge plot of three acres, No. 12 A in Sector 68 (which appears to be carved out later for them) to Sabs Exports in November 2006 at a throwaway price of Rs 4,000 per square metre is also not in the normal course and was similarly made within days of application and a bogus interview, without any other system. Moreover, the allotment has been made at a time when he was dealing with the Amar Singh tapes case and had stayed the publication of the tapes. We would be happy to buy that plot too at three times the price at which it was given to them. CHARGE NO. 7 That his sons have purchased a 1,150-square metre house in Maharani Bagh, New Delhi in March 2007 for a consideration of Rs 15.46 crore. The source of money for this is unexplained and in the sale deed they seek to conceal their relationship with Justice Sabharwal by writing his name as Yogesh Kumar and giving their factory address instead of the residential address. HIS RESPONSE: That 90 percent of the money for the purchase of this house was from four banks; that his sons concealed his full name in the sale deed in order to avoid taking advantage of their association with him. OUR REJOINDER: Banks do not normally advance loans of 90 percent of the value of a property on its security. Otherwise they would end up holding inadequate security if the property prices fall by even 15 percent. If they have done so in this case, it is either because of an undue favour as in the case of the loan of Rs 28 crore to Pawan Impex, or they valued the property higher than the declared purchase price. His explanation for concealing his name in the sale deed is hilarious and unbelievable since his sons did not hesitate to use his official residence as the registered office of their companies. Moreover, this was in a registered sale deed with a private party, where there was no occasion for taking any advantage by using his name. It is therefore clear that Justice Sabharwal is guilty of serious judicial misconduct and appears to be prima facie guilty of offences under the Prevention of Corruption Act which need to be investigated. Sep 22, 2007