IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 WP(C).No. 24436 of 2011 ------------------------- PETITIONER: -------------- BABU JOSEPH PUTHANANGADI, AGED 51 YRS, S/O. P.P.JOSEPH, "PUTHANANGADI HOUSE", NEAR LIONS HALL, CHALAKUDY, THRISSUR DISTRICT. BY ADV. BABU JOSEPH PUTHANANGADI(PARTY-IN-PERSON RESPONDENTS: ----------------- 1. UNION OF INDIA, REPRESENTED BY MINISTRY OF FINANCE, NEW DELHI-110 001. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,THIRUVANANTHAPURAM-695 001. 3. SECRETARY, GENERAL ADMINISTRATION (SC) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4. PRINCIPAL SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 5. COMPTROLLER AND AUDITOR GENERAL OF INDIA, THIRUVANANTHAPURAM-695 001. 6. SECRETARY, DISASTER MANAGEMENT (REVENUE SLMC), SECRETARIAT, THIRUVANANTHAPURAM-695 001. 7. CENTRAL BUREAU OF INVESTIGATION, KERALA UNIT, KATHRIKADAVU, KALOOR, REPRESENTED BY THE DIRECTOR, PIN-682 017. WP(C).No. 24436 of 2011 8. OMMEN CHANDY, CHIEF MINISTER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. 9. DR. VIJAYAN UNNI, EX-CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001. R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R2 TO R6 & R8 BY SENIOR GOVT. PLEADER, SRI.BENNY GERVACIS. R7 BY SRI.P. CHANDRASEKHARA PILLAI, SC, CBI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/09/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24436 of 2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE JUDGMENT OF THE KERALA LOKAYUKTHA DATED 05.10.2005 IN COMPLAINT NO.158/2005. EXT.P2 : TRUE COPY OF THE LETTER DATED 10.07.2010 SUBMITTEDBY THE PETITIONER BEFORE THE GOVERNOR. EXT.P3 : TRUE COPY OF THE REPLY SEND BY THE OFFICE OF THE GOVERNOR BEARING NO.KRB/RIA/6/2011 DATED 21.01.2011. EXT.P4 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 07.04.2010 WHICH IS ACKNOWLEDGED BY THE OFFICE OF THE CHIEF SECREARY TO THE GOVERNMENT OF KERALA. EXT.P5 : TRUE COPY OF THE LETTER BEARING NO.44205/TRPC3/2009/DMD DATED 02.08.2010 ISSUED BY THE UNDER SECRETARY. /TRUE COPY/ PA TO JUDGE J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 24436 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of September, 2011 JUDGMENT J.Chelameswar, C.J. The writ petition is filed as Public Interest Litigation by a party-in-person. The prayers in the writ petition are as follows: “a) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to hand over the investigation of the case registered by the Vigilance Department pursuant to the submission of Dr.Vijayannunni Commission Report with regard to misutilisation and misappropriation and diversion of tsunami funds, to the 7th respondent or any other national agency as directed by this Hon'ble Court. b) Issue a writ of mandamus or any other appropriate writ order or direction commanding the 1st respondent to take immediate action based on Dr.Vijayannunni's Commission Report and initiate appropriate proceedings against those persons in the bureaucracy responsible for the misutilisation and misappropriation and diversion of tsunami funds. c) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 8th respondent from interfering with the investigation process with regard to the findings of Dr.Vijayannunni Commission regarding misutilisation and misappropriation and diversion of tsunami funds. W.P.(C) No. 24436 of 2011 -:2:- d) Issue a writ of mandamus or any other appropriate writ order or direction commanding the 8th respondent to keep away from all General administrative functions, until his name is absolved and he is exonerated from the enquiry ordered based on the findings of the Lokayuktha and the findings of Dr.Vijayannunni Commission regarding misutilisation and misappropriation and diversion of tsunami funds. e) Grant such other relief deemed fit to this Hon'ble Court.” 2. The factual background from which the writ petition arises is as follows. A natural calamity now notoriously known as “Tsunami” occurred in the month of December 2004, which resulted in a heavy loss of life and also destruction of property not only in this country but also in various other countries. To meet the challenge caused by such disaster, various measures were taken both by the concerned State Governments and also the Government of India. 3. It is alleged in the writ petition that in so far as the State of Kerala is concerned, a decision was taken to constitute a fund called the 'Chief Minister's Distress Relief Fund' and an appeal was made to the general public to liberally contribute to the fund to enable the State to take steps for the alleviation of W.P.(C) No. 24436 of 2011 -:3:- the misery resulting from the natural calamity. It is averred in the writ petition that the State of Kerala issued an order, G.O. (Rt) No. 3493/2005/DMD dated 17.06.2005. Unfortunately a copy of the Government Order is not placed on record, but the relevant averment made in the writ petition is as follows: “The State Government woke up only on 17.06.2005 and thereafter issued a notification bearing No.GO(Rt) No.3493/05/DMD dated 17.06.2005 prohibiting receipt of amounts under the caption of tsunami rehabilitation. Though the notification was dated 17.06.2005, the cut off date for receipt of the contribution was declared with effect from 21.06.2005 and contributions were received after the date of notification by the State Government in the name of tsunami rehabilitation. It is respectfully pointed out this is done with an ulterior motive.” 4. It is further averred in paragraph 6 of the writ petition as follows: “6. It s further pointed out that until 26.12.2004 the reserve fund that was present in the Chief Minister's Distress Relief Fund was Rs.26 lakhs. However, after the request for contribution for tsunami relief was made, the contribution soared up to Rs.40 crores, which itself is an indication that the funds that were receive by the State Government was for the specific purpose of tsunami rehabilitation.” W.P.(C) No. 24436 of 2011 -:4:- 5. It is further stated by the petitioner that during the abovementioned period when the funds were received, the 8th respondent herein was the Chief Minister of the State of Kerala, with a further allegation that the funds so received were utilised by the Government of Kerala under the stewardship of the 8th respondent in areas which are nothing to do with the devastation of Tsunami. The relevant portion of the pleading is as follows: “However the 8th respondent directed the funds to be placed in the Chief Minister Disaster Relief Fund and utilised these funds in areas which have no chance of being affected by tsunami. The funds were utilised in areas like Kottayam, Idukki and Wynad, which are high range areas and have absolutely no access to sea. The funds which were contributed for tsunami affected areas have thus been diverted to non- tsunami areas which is a serious and willful lapse.” 6. It also appears from the pleading that subsequently an enquiry commission was constituted into the various allegations made regarding the alleged irregular utilisation of the fund, such a commission was headed by Dr.Vijayan Unni, who was the former Chief Secretary of the State of Kerala(9th respondent herein). Admittedly the 9th respondent submitted his report on 30.01.2007. The relevant portion of the pleading reads W.P.(C) No. 24436 of 2011 -:5:- as follows: “Taking into consideration the wide spread allegation that were fastened against the 8th respondent, the Government of Kerala under the Chief Ministerhip of V.S.Achuthananthan, constituted enquiry commission to look into the various irregularity that was committed in the name of tsunami rehabilitation. The commission of enquiry on tsunami fund utilization was given to Dr.Vijayannunni, who was the former Chief Secretary of Kerala as per notification bearing No.766/2006 dated 30.10.2006. The Commission of enquiry has submitted a detailed and voluminous report to the Government on 30.01.2007.” 7. Complaining that no action is taken against the 8th respondent by the Government on the basis of the report submitted by the 9th respondent, the instant writ petition is filed with the prayers which are already extracted. It may be mentioned for the sake of record that the 8th respondent has once again been elected as Chief Minister of the State in the month of May, 2011. A fact, in our opinion, is crucial in deciding the bonafides of the instant writ petition. 8. We are of the opinion that the writ petition is not a petition filed bonafide for the following reasons. (1) Various allegations made in the writ petition regarding the “misutilisation W.P.(C) No. 24436 of 2011 -:6:- of the funds” pertain to the period 2004-2005. We must hasten to add that we are not expressing any view on the question whether the funds were utilized in accordance with law or not. (2) The alleged report of the 9th respondent (also not placed before the Court by the petitioner) is admittedly dated 30.01.2007. The petitioner comfortably waited for a period of almost '5 years' thereafter and now springs into action under the guise of Public Interest Litigation. We, therefore, hold that the petition is not a bonafide Public Interest Litigation and the same is required to be dismissed at the admission stage and with costs quantified at `10,000/- to be paid to the High Court Legal Services Committee. J.Chelameswar, Chief Justice. P.R.Ramachandra Menon, Judge. ttb