IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5847 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- AMARSINHBHAI BHILABHAI CHAUDHARY Versus STATE OF GUJARAT, CHIEF SECRETARY -------------------------------------------------------------- Appearance: Mr.Vakharia for MR TUSHAR MEHTA for Petitioner Mr.S.N. Shelat, Additional Advocate General, with Mr.A.D. Oza, GOVERNMENT PLEADER for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE P.B.MAJMUDAR Date of decision: 11/09/2000 C.A.V. JUDGEMENT: (Per B.C. Patel, J.) 1. The petitioner, who was Chief Minister in the State of Gujarat, has filed this petition under Article 226 of the Constitution of India challenging the order made by His Excellency the Governor of Gujarat on 17th April, 2000 in exercise of powers under Section 8(3) of the Gujarat Lokayukta Act, 1986 (hereinafter referred to as the Act). 2. Brief Facts : The petitioner filed Special Civil Application No.2397 of 1999, inter alia, praying for quashing and setting aside the decision / approval dated 17th January, 1997 and / or 28th January, 1997, purported to have been given under Section 19(3) of the Act as well as the letter dated 15th March, 1999. It was alleged in the petition that the respondent No.2, the present Lokayukta has a bias against the petitioner and, therefore, the proceedings pending before the Lokayukta should not be allowed to continue. Learned single Judge on 9th July, 1999 admitted the petition and granted interim relief. Against the order passed by the learned single Judge, a Letters Patent Appeal was preferred before the Division Bench, being L.P.A. No.1080 of 1999. The Division Bench was of the view that the application which was made before His Excellency the Governor cannot be treated as an application under Section 8(3) of the Act. The Division Bench considered the provisions contained in Section 19 of the Act as also Section 8(3) of the Act. Considering the submissions, the Division Bench allowed the appeal. However, it was kept open for the petitioner to move an application under Section 8(3) of the Act to His Excellency the Governor of Gujarat. After disposal of the appeal, it appears that an application was made to His Excellency the Governor. A copy of the application dated 15th October, 1999 is placed on record at Annexure `Z'. It seems that after considering the application in accordance with law and after obtaining the opinion of the Honourable the Chief Justice of the High Court of Gujarat, His Excellency the Governor, considering the opinion of the Honourable the Chief Justice, passed an order vide Annexure `A' dated 17th April, 2000 permitting the Lokayukta to proceed with the inquiry and to complete the same as directed, and to keep its report in a sealed cover, awaiting the final decision of the case pending on the judicial side of the High Court of Gujarat. Being aggrieved by the said order, the present petition is preferred. Mr.Vakharia for the petitioner has argued that there is sufficient material on record for coming to the conclusion that the respondent No.2 had a bias against the petitioner. He further submitted that the manner in which the respondent No.2 is conducting the proceeding, there is a reasonable apprehension in the mind of the petitioner that the respondent No.2 is keeping bias against the petitioner and that looking to the documents on record, especially when the petitioner himself has filed a petition against the respondent No.2, and respondent No.2 himself is an adversary litigant against the petitioner, His Excellency the Governor of Gujarat ought to have accepted the say of the petitioner about bias. Mr.Vakharia further argued that the petitioner was not supplied with the copy of the communication, which was forwarded to the Honourable the Chief Justice for obtaining his opinion. It is also argued that the petitioner has not been supplied a copy of the opinion forwarded by the Honourable the Chief Justice to His Excellency the Governor and that for want of the said material, it is not possible for the petitioner to know as to on what basis and on what material, the decision was taken by His Excellency the Governor and, therefore, the order of His Excellency the Governor is in violation of the principle of natural justice. He further argued that His Excellency the Governor has not given any opportunity of personal hearing to the petitioner. 3. Against the aforesaid argument, Mr.Shelat, Additional Advocate General, argued that there is no substance so far as this argument of bias is concerned. He further submitted that there was no question of giving copy of the communication which was forwarded to the Honourable the Chief Justice for his opinion. Similarly, there was no question of giving copy of the report of the Honourable the Chief Justice, which was submitted by him to His Excellency the Governor. Mr.Shelat further argued that this Court is not sitting in appeal over the decision of His Excellency the Governor and His Excellency the Governor reached the subjective satisfaction, on the material which was placed before him. Accordingly, Mr.Shelat has submitted that there is no merit in this petition. He further argued that the petition is filed to prolong the proceedings before the Lokayukta, and that there is no provision for personal hearing, and, therefore, according to him, having no substance, the petition deserves to be dismissed in limine. 4. The petitioner was a Minister of Forest at the relevant time. Spl.C.A.Nos.4343 of 1989 and 8672 of 1991 were filed, seeking an inquiry into the felling of the trees, to which the present petitioner was one of the respondents. Large scale cutting of trees is said to have taken place in the Surat Circle of the Forest Department. The Court directed appointment of a Commission under the provisions contained in the Commission of Inquiry Act. It was also directed that it will be open for the State Government to independently consider the question of appointing Commission of Enquiry in consonance with the provisions of Section 3 of the Commission of Enquiry Act, keeping in view the provisions of Section 7 of the Act. It appears that the State Government took a decision on or about 28th May, 1996 to inquire into the allegations of large scale illegal felling of trees in the forests of Surat Circle which took place from April, 1983 to May, 1985, resulting into gross loss to the State Government to the tune of more than Rs.25/- crores and permanent damage to the environment. A retired Judge of this Court was appointed to make an inquiry by Notification dated 28th May, 1996. The Commission was to submit its report within a period of six months. However, the Commission could not submit its Report within the specified period and sought extension of the term for a period of six months, which was not granted by the Governor at the relevant time, and further decided to entrust the matter to Lokayukta and accordingly, Notification dated 20.12.1996 was issued, declaring that the said Commission shall cease to exist with effect from 30.11.1996 and in exercise of powers conferred under sub-section (3) of Section 19 of the Act, an order was passed by His Excellency the Governor, requiring the Lokayukta to investigate the matter. That is how the incident causing financial loss to the State and permanent damage to the environment was required to be examined by the Lokayukta. 5. Provisions of the Lokayukta Act : An Act to make provision for appointment of Lokayukta for the investigation of allegations against public functionaries in the State of Gujarat and also for safeguarding the dignity and prestige of public functionaries against false and frivolous allegations and for matters connected therewith was enacted in 1986. Sub-section (2) of Section 2 defines `allegations', which reads as under :- "2. In this Act, unless the context otherwise requires,- (1) ... ... ... (2) "allegation" in relation to a public functionary and with reference to any action taken by him, means any affirmation that such public functionary in his capacity as a public functionary-- (a) is guilty of corruption, or lack of integrity; or (b) was actuated in the discharge of his functions by personal interest or improper or corrupt motives; or (c) has abused his position to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person; .... " So far as appointment of Lokayukta is concerned, Section 3, being the relevant section, is reproduced hereunder :- "3. (1) For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as the Lokayukta : Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court and except where such appointment is to be made at a time when the Legislative Assembly of the State of Gujarat has been dissolved or a Proclamation under article 356 of the Constitution is in operation in the State of Gujarat, after consultation also with the Leader of the Opposition in the Legislative Assembly, or if there be no such Leader, a person elected in this behalf by the members of the Opposition in that House in such manner as the Speaker may direct. (2) A person shall not be qualified for appointment as a Lokayukta unless he is or has been a Judge of a High Court. (3) Every person appointed as the Lokayukta shall, before entering upon his office, make and subscribe, before the Governor or some person appointed in that behalf by him, an oath or affirmation in the form set out for the purpose in the First Schedule." So far as matters not subject to investigation is concerned, Section 8, being the relevant section, is reproduced hereunder :- "8. (1) The Lokayukta shall not investigate any action,- (a) in respect of which a formal and public inquiry has been ordered under the Public Servants (Inquiries) Act, 1850 with his prior concurrence, or (b) in respect of a matter which has been referred for inquiry under the Commissions of Inquiry Act, 1952 on his recommendation or with his prior concurrence or by the State Government under the proviso to sub-section (2) of section 7, or (c) in respect of a matter which has been inquired into under the enactments referred to in clauses (a) and (b) or has been finally decided by a competent court. (2) The Lokayukta shall not investigate any complaint which is excluded from his jurisdiction by virtue of a notification issued under Section 20. (3) The Lokayukta shall not inquire into any matter concerning any person if he has any bias in respect of such matter or person and if any dispute arises in this behalf, the Governor shall, on an application made by the party aggrieved, obtain in such manner as may be prescribed, the opinion of the Chief Justice of the High Court and decide the dispute in conformity with such opinion. (4) The Lokayukta shall not inquire into any complaint if the complaint is made after the expiry of five years from the date on which the action mentioned in such complaint is alleged to have been taken." Section 19 refers to conferment of additional function in relation to eradication of corruption. The said section reads as under : "19. (1) The Governor may, by notification published in the Official Gazette and after consultation with the Lokayukta confer on the Lokayukta such additional functions in relation to the eradication of corruption as may be specified in the notification. (2) The Governor may, by order in writing and after consultation with the Lokayukta confer on the Lokayukta such powers of a supervisory nature over agencies, authorities or officers set up, constituted or appointed by the State Government for the eradication of corruption as may be specified in the order. (3) The Governor may, by order in writing and subject to such conditions and limitations as may be specified in the order, require the Lokayukta to investigate any action (being action in respect of which a complaint may be made under this Act to the Lokayukta) and notwithstanding anything contained in this Act, the Lokayukta shall comply with such order. (4) When any additional functions are conferred on the Lokayukta under sub-section (1) or when the Lokayukta is to investigate any action under sub-section (3), the Lokayukta shall exercise the same powers and discharge the same functions as he would in the case of any investigation made on a complaint involving an allegation, and the provisions of this Act shall apply accordingly." So far as appointment of Lokayukta is concerned, the petitioner has a grievance that he being the Leader of the Opposition in the Legislative Assembly, there was no effective consultation with him and without consulting him the appointment was made. Section 3 contemplates that for the purpose of conducting investigation in accordance with the provisions of the Act, the Governor shall by warrant under his hand and seal, appoint a person to be known as `Lokayukta". It requires that Lokayukta shall be appointed after consultation with the Chief Justice of the High Court of Gujarat. At the time when such appointment is to be made, if the Legislative Assembly of the State of Gujarat has not been dissolved or there was no proclamation under Article 356 of the Constitution in operation in the State, then there should be consultation with the Leader of the Opposition in the Legislative Assembly. If there is no such leader in opposition, then, in that case, the person elected in this behalf by the members of the opposition in that house in such manner as the Speaker may direct, may be consulted. The petitioner challenged the appointment of Lokayukta in earlier proceedings as there was no consultation as understood by him. In those proceedings, the State of Gujarat is respondent No.1 and the Lokayukta is also one of the respondents. It was urged before the Court that in exercise of the powers conferred under sub-section (3) of Section 9 of the Act, an order was passed by His Excellency the Governor requiring the Lokayukta to investigate the matter. Sub-section (3) indicates that when an order is made by the Governor in writing subject to such conditions and limitations, if any, as specified in the manner, calling upon the Lokayukta to investigate any action, then notwithstanding anything contained in the Act, the Lokayukta has to comply with the said order. It was submitted before us that as stated earlier, it appears that in earlier petition filed by the petitioner, an interim order was passed which was challenged before the L.P.A. Court, being L.P.A.No.1080 of 1999. Section 8 of the Act was considered by the Court. The petitioner wanted to say that Lokayukta should not inquire into the matter as he had a bias. The Court pointed out that on interpretation of sub-section (3) of Section 8, one has to apply in consonance with the provisions. The provisions are self-contained and provide for the procedure for approaching His Excellency the Governor if there is any dispute under sub-section (3) of Section 8 of the Act and, thereafter, the dispute is to be decided in accordance with the provisions contained in sub-section (3) of Section 8 of the Act. 6. Mr.Vakharia, learned counsel, submitted that in the instant case, by a notice at Annexure `D' on 5.2.1999, the petitioner was informed about the investigation against the public functionary, calling upon him to show cause on or before 19th February, 1999 as to why investigation should not be conducted in public. 7. Under Section 17(1) of the Rules a notice dated 5.2.1999 (vide Annexure `E') was served on the petitioner in this behalf and he was required to file statement in reply and to offer comments and explanation supported by an affidavit along with the true copies of the documents under his signature on or about 19.2.1999, intimating further that on failure the matter shall proceed in his absence. A statement, setting out the grounds, 11 in number, was also forwarded to the petitioner and he was required to explain and to make comments on the grounds. 8. On 19.2.1999, an application on behalf of the petitioner addressed to the Registrar, Office of the Lokayukta, was tendered, inter alia, stating that the petitioner never received the copy of the decision or an order under Section 19(3) of the Act and requested to supply a copy of the order and decision of His Excellency the Governor of Gujarat on payment of charges. For further communication, the petitioner did not furnish his address but furnished the address of his Advocate. (This was written by the learned Advocate, and possibly must have been under the instructions of the petitioner). On 19.2.1999, the petitioner submit.... time on the ground that he is busy with the election campaign. It appears that by order dated 22.2.1999, the Registrar, under the direction of the Lokayukta informed that in view of Rule 23 of the Rules, the application dated 19.2.1999 cannot be taken note of, and hence, was filed. 9. Rule 23 of the Gujarat Lokayukta Rules, 1989, being relevant, is reproduced hereinbelow :- "23. Appearance of Advocate, Pleader, etc: Ordinarily, no Advocate, Pleader, Muktyar or other legal representative shall be allowed to appear before the Lokayukta in the investigations under this Act : Provided that the Lokayukta may in specific cases allow the parties to appear through any such person if the Lokayukta is satisfied that such appearance is necessary in the interest of the proper disposal of the complaint." It is clear from the provisions aforesaid that there must be something on the record to satisfy the Lokayukta that the appearance of an Advocate is necessary in the interest of the proper disposal of the complaint. In the absence of any material placed before the Lokayukta, how the Lokayukta would arrive at a satisfaction as contemplated in the Rule. When the Legislature has thought it fit that for participating in the proceedings, there must be some material pointing out that assistance of a lawyer is necessary for the purpose of proper disposal of the complaint. For that purpose, Lokayukta will have to consider the same and record his satisfaction. Ordinarily, Advocate is permitted to appear on behalf of the defendant, but when the Legislature has thought if fit not to permit a lawyer to take part, ordinarily, in the absence of reply, indicating the need as contemplated in the rule to reach a proper satisfaction, to expect the Lokayukta to grant an application mechanically would amount to asking the Lokayukta to prejudge the matter that the matter is a complicated one and without the assistance of a lawyer, matter cannot be decided. It appears that the petitioner was not allowed to engage an advocate by order dated 5th March, 1999 at Annexure `Y' to the petition. 10. By an order dated 22nd February, 1999, Annexure `J', order was passed that Lokayukta shall proceed ex parte under Rule 20 of the Rules. Rule 20 of the Rules reads as under :- "20. Failure to reply:- If such public functionary fails to appear personally to file his reply and to offer his comments or fails to file his reply and to offer his comments, within the time specified or granted under sub-rule (1) of rule 17, the complaint may be heard and decided in his absence." It appears that vide Annexure `K' dated 25.2.1999 in response to notice dated 5.2.1999, calling upon the petitioner as to why an investigation should not be conducted in public, the petitioner gave a reply, inter alia, pointing out that he was busy in election campaign and he has requested for time. He pleaded that time given was too short to collect all information necessary and prayed for time of four weeks. On 25.2.1999, the petitioner submitted another application under Rule 17(1). It was an application to condone the delay and to extend the time to file reply and to offer comments, vide Annexure `M'. Vide Annexure `N', the petitioner forwarded another application dated 25.2.1999 praying for copy of the order passed by His Excellency the Governor, decision and order under sub-section (3) of Section 19 of the Act and other documents. On 25.2.1999, vide Annexure `O', an application was submitted to permit him to engage an advocate and a senior counsel. All these papers were forwarded through the Private Secretary to the petitioner. 11. So far as contention of delay, extension of time to file reply and offering comments are concerned, considering Rule 21 of the Rules, which was reproduced in the order communicated to the petitioner, application was filed. His other application for time to file reply was also filed. So far as supply of copies is concerned, attention of the petitioner was drawn to Rule 41 of the Rules. The aid Rule 41 reads as under :- "41. Certified copy:- No person shall be entitled to a certified copy of any record of the proceeding before the Lokayukta : Provided that, subject to the Provisions of sub section (2) of section 10 and sub section (1) of section 16, the Lokayukta may permit a certified copy to be granted of the final order passed in a case, or of such part thereof, as he may deem fit." On 26th February, 1999, the petitioner was informed that his application for engaging an advocate is fixed for hearing on 5.3.1999. On 5.3.1999, the request for permission to engage an advocate or senior counsel was rejected by the Lokayukta. The petitioner was further informed that he was required to remain present personally in the office of the Lokayukta, failing which the matter will be heard and decided in his absence. It appears that after the order passed by the Lokayukta, the petitioner challenged the order before this Court by filing Special Civil Application No.3130 of 1990. Ultimately, by an order dated 22.6.1999, the petitioner was permitted to engage an Advocate and Senior Counsel of his choice. The aforesaid order was passed by a further order below Exhibit 56. 12. Both the sides have argued the matter at great length and has cited various judgments on the point in question. So far as the question about justiciability of the order of His Excellency the Governor is concerned, Mr.Vakharia has relied upon the judgment of the Apex Court in the case of S.R. Bommai and others v. Union of India and others, AIR 1994 SC 1918. So far as the aforesaid case before the Honourable Supreme Court is concerned, it was in connection with the proclamation issued by the President of India under Article 356 of the Constitution of India. Whether such proclamation can be subject to judicial review or not has been considered in paragraph 54 by the Apex Court. A reference to the aforesaid paragraph 54 is required to be made :- "... 54. Before we examine the scope and the limitations of the judicial review of the Proclamation issued under Art. 356(1), it is necessary to deal with the contention raised by Shri Parasaran appearing for the Union of India. He contended that there is difference in the nature and scope of the power of judicial review in the administrative law and the constitutional law. While in the field of administrative law, the Court's power extends to legal control of public authorities in exercise of their statutory power and therefore not only