The conviction of Jayalalitha

AIADMK leader and former Chief Minister Jayalalitha is sentenced to one year's rigorous imprisonment on charges of criminal misconduct and criminal conspiracy in what is known as the Pleasant Stay Hotel case; she has appealed and the sentence ha s been stayed by the Madras High Court.

ON February 2, All India Anna Dravida Munnetra Kazhagam (AIADMK) general secretary Jayalalitha became the first former Chief Minister to be punished under the Prevention of Corruption Act (PCA), 1988 when Special Judge V. Radhakrishnan in Chennai convict ed and sentenced her to one year's rigorous imprisonment for her role in granting illegal exemption in 1994 to Pleasant Stay Hotel, Kodaikanal from building and hill area development control rules. The exemption related to the unauthorised addition of fi ve floors to the hotel building. The judge sentenced Jayalalitha, the first accused, to one year's rigorous imprisonment each on the charges of criminal conspiracy under the Indian Penal Code (IPC) and criminal misconduct by a public servant under the PC A. She was also asked to pay a fine of Rs.1,000 on each of these counts.

Radhakrishnan sentenced four other accused to rigorous imprisonment for one year and six months on different charges and asked them to pay varying amounts as fine. The sentences of imprisonment were to run concurrently. These accused were T.M. Selvaganap athy, former Local Administration Minister and now the Lok Sabha member from Salem (A-2); H.M. Pandey, former Secretary, Municipal Administration and Water Supply (A-3); Rakesh Mittal, executive director of the hotel (A-4); and Palai N. Shanmugham, its c hairman and managing director (A-5).

Radhakrishnan convicted all the five accused under Section 120-B (criminal conspiracy) and sentenced them to one year's rigorous imprisonment each. He held them guilty of conspiring to grant the exemption. While the judge gave the benefit of the doubt to Jayalalitha and acquitted her under Section 477-A of the IPC (falsification of records), Selvaganapathy was sentenced to imprisonment under that section. Jayalalitha, Selvaganapathy and Pandey were convicted under Section 13(2) read with Section 13(1)(d ) of the PCA and sentenced to one year's rigorous imprisonment each. Mittal and Shanmugham were convicted under Section 109 of the IPC (punishment for abetment) read with Section 13(1)(d) of the PCA and sentenced to one year's rigorous imprisonment each.

The Special Judge said: "We have sufficient circumstantial evidence which proves beyond any reasonable doubt that A-1 to A-3 committed criminal misconduct abetted by A-4 and A-5, and A-1 to A-5 were party to the criminal conspiracy. Hence I am inclined t o impose the minimum sentence contemplated under Section 13(2) of the Prevention of Corruption Act."

Section 13(1)(d) of the PCA says: "A public servant is said to commit the offence of criminal misconduct if he (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public in terest..."

Section 13(2) states that "any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine."

Jayalalitha was Tamil Nadu's Chief Minister from 1991 to 1996 and Selvaganapathy was a Minister in her Cabinet. Pandey is an Indian Administrative Service (IAS) officer. As such, they were all public servants as defined by the law.

The judge said the file relating to the hotel should have reached the Chief Minister through her office if the usual procedure had been adopted. However, evidence from three prosecution witnesses showed that it had gone directly to her table from Selvaga napathy. She gave her approval to the exemption by affixing her signature. The judge, therefore, concluded that circumstances clearly indicated that Jayalalitha had conspired with Selvaganapathy, and also Mittal and Shanmugam, to grant pecuniary advantag e to the hotel by passing orders and she thus had abused her position as a public servant.

The Dravida Munnetra Kazhagam (DMK) Government headed by M. Karunanidhi, which assumed office in 1996 after Jayalalitha lost the Assembly elections, filed 46 cases of corruption against her, her Ministers and some bureaucrats. Eight cases of corruption w ere filed against Jayalalitha alone.

The Pleasant Stay Hotel case was the focus of attention after Justice S. Thangaraj of the Madras High Court discharged Jayalalitha on January 13 in the "Jaya Publications case" and "Sasi Enterprises case", together called the "TANSI case" (TANSI is the a cronym for Tamil Nadu Small Industries Corporation). The same day, Justice Thangaraj upheld Special Judge Radhakrishnan's order discharging Jayalalitha in a case relating to alleged irregularities in the import of coal by the Tamil Nadu Electricity Board .

ON February 2, hundreds of policemen were massed around the building where the courts of three special judges are located. Supporters of the AIADMK had gathered in large numbers. Jayalalitha arrived in the court hall at 10-10 a.m., accompanied by her ass ociate Sasikala Natarajan and AIADMK Lok Sabha member T.T.V. Dinakaran. The court hall was packed with advocates and AIADMK members.

At 10-30 a.m., the judge began to pronounce the orders. When he first said he acquitted A-1 (Jayalalitha) of charges under Section 477-A of the IPC (falsification of records), she looked relieved. Jubilant AIADMK members ran out of the court, shouting, " acquitted, acquitted." Outside the complex, party men fired crackers and distributed sweets. But their joy was short-lived.

When the judge said next that he found all the accused guilty of charges under Section 120-B of the IPC, Jayalalitha looked shocked. Then he read out the sentences of imprisonment and the fine amounts. The judge suspended his order until March 3 for the accused to appeal to the High Court.

According to the Directorate of Vigilance and Anti-Corruption (DVAC), which filed the case, the hotel management was permitted to build only the ground and first floors but it constructed seven floors. The DVAC filed the charge-sheet on January 18, 1997.

In April 1991, Mittal was granted permission by the Kodaikanal township to construct the ground and first floors. In January 1992, he submitted a revised plan to construct seven floors but it was rejected as violative of rules. Mittal appealed against th e decision and went ahead with the construction without waiting for an order. When he was building the fourth floor, the Palani Hills Conservation Council (PHCC) obtained a stay from the Madras High Court. Navroz Mody and Tara Murali of the PHCC led the legal battle against the hotel and ultimately won (Frontline, December 26, 1997).

To legalise the illegal construction, the Jayalalitha Government surreptitiously brought in a Government Order, G.O. Ms. No.126, on May 13, 1994, granting Mittal permission for the construction of seven floors. The G.O. was not gazetted. In December 1994 , the State Assembly passed the Tamil Nadu District Municipalities (Second Amendment and Validation) Act, amending Section 217 Q. The amended section gave powers to municipalities to exempt or relax any rule made under Chapter X of the Act for even priva te buildings if they did not affect the ecology of a hill station.

P.C. Cyriac, the then Secretary, Municipal Administration and Water Supply, declined to legalise the unauthorised construction. He was transferred and Pandey was brought in in his place.

The exemption was granted by Jayalalitha, Selvaganapathy and Pandey in spite of objections from the Architectural and Aesthetics Aspects Committee (AAAC) headed by the Chief Secretary.

The AIADMK Government passed another G.O., Ms. No.317, dated December 6, 1994, exempting the building from the provisions of the Development Control Rules, relating to commercial use zone side setback and floor space index. It was given retrospective eff ect from May 13, 1994, when the earlier G.O. was passed. The PHCC challenged the second G.O. also.

On March 31, 1994, Justice J. Kanakaraj of the Madras High Court directed Mittal not to use any floor other than the ground and the first floors. Justice Kanakaraj dismissed as a "cock and bull story" Mittal's claim that all he did was to build a "baseme nt" with five floors, and that the sixth and seventh floors were the ground and first floors.

Mittal went on appeal and Justice M. Srinivasan and Justice S. Jagadeesan dismissed the appeal. The Bench ordered the demolition of the illegal floors. It quashed the G.O. of May 13, 1994. The two judges indicted Jayalalitha and Selvaganapathy for "not a pplying their minds" when they approved the illegal construction.

IN his order, Special Judge Radhakrishnan said that in order to prove the conspiracy, it was not mandatory that the prosecution should prove that all the conspirators met each other. He pointed out that the First Information Report was filed about two ye ars after the offence took place. When the conspiracy involved high officials and politicians, it was difficult for the investigating officer to obtain incriminating material, especially two years after the offence. The special judge said, "If the prosec ution is able to prove through circumstantial evidence that there was a meeting of minds between the conspirators, it will be sufficient to prove the criminal conspiracy."

He held that despite the well-founded objections by the Department Secretary (Cyriac), Jayalalitha and Selvaganapathy gave exemption to the hotel, enabling it to gain pecuniary advantage. Although it had not been proved that they received any "reciprocal benefit" in granting the exemption, Radhakrishnan said, "the question always remains why the two and Pandey, by going out of the way and against the existing rules, should issue two G.Os to obtain pecuniary advantage for Mittal and Shanmugham." Jayalali tha, as Chief Minister, could not shift the blame to Selvaganapathy by claiming that she relied on his wisdom. That she transferred Cyriac, brought in Pandey and ignored the High Court's orders would "clinchingly prove that she had acted dishonestly by a busing her position as a public servant," the judge held.

He added that Jayalalitha and Selvaganapathy interpreted the High Court orders - that if the hotel was able to receive approval, it could complete the construction - in an improper manner to suit their convenience.

Pandey, who knew the history of the hotel file, was aware that the exemption orders by Jayalalitha and Selvaganapathy were passed without any public interest, the judge said. Although Pandey had the power to recirculate the file, he did not follow the Se cretariat instructions and willingly directed his subordinates to issue the order as desired by Selvaganapathy. The judge said that therefore Pandey became a party to the criminal conspiracy.

This was the third successive case in which the DVAC has been able to secure a conviction. Earlier, another special judge, S. Sambandham, had convicted and sentenced to imprisonment former AIADMK Minister Nagoor Meeran, his wife, Dr. Jameela Meeran, and former AIADMK legislator Malliga, who were charged with accumulating wealth disproportionate to their known sources of income. The DVAC team comprised Inspector-General of Police V.C. Perumal, Superintendent of Police N. Nallamma Naidu, Deputy S.P. S. Ra dhakrishnan and Inspector R. Venugopal.

On the legal side, the prosecution was led by N. Natarajan, Senior Special Public Prosecutor for corruption cases against Jayalalitha. The prosecution case was conducted by Special Public Prosecutors S. Ramasamy and K.E. Venkataraman. Special Public Pros ecutor R. Karunakaran and advocate Sunder Mohan assisted Natarajan.

On an appeal from Jayalalitha, the Madras High Court suspended on February 9 the implementation of Judge Radhakrishnan's order convicting and sentencing her. Justice I. David Christian granted her bail on her executing a bond for Rs.2,000 and two suretie s for a like amount. He ordered notice to the DVAC, returnable in two weeks. In her appeal, Jayalalitha said the prosecution could not produce evidence to show any illegal motive on her part in signing and approving the G.O. of May 13, 1994.