* THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION Nos.18902 of 2008 and 3936, 15220, 16525, 17150, 17442, 17955, 18451, 20618, 20757, 20767 and 22105 of 2009 % .12.2009 Between: Surada Ramana, S/o.Late Demudu And others …Petitioners AND The District Collector, Visakhapatnam District And others …Respondents. Counsel for the petitioners: Sri P.V. Krishnaiah Sri K.S.Murthy Sri Karri Suryanarayana Sri V.Srinivas Sri P.Krishna Prakash Sri V.Raghunath Sri S.Prasada Rao Sri Nagesh Bheemapaka Counsel for the Respondents: The Government Pleader for Tr, R&B Sri Y.V.Ravi Prasad, Sri Y.Ravindra < Gist: > Head Note: ? CITATIONS: 1. (1985) 3 SCC 545: AIR 1986 SC 180 2. (1994) 4 SCC 460: AIR 1995 SC 519 3. (1999) 4 SCC 43: AIR 1999 SC 1786 4. (1997) 9 SCC 42 5. 1992(3) ALT 224 (DB) 6. 1996(4) ALT 1072 (DB) 7. (1997) 9 SCC 42 8. 146 US 387 : 36 L Ed 1018 (1892) 9. (1997) 1 SCC 388 10. (1999) 6 SCC 464 11. (2006) 3 SCC 549 12. (2009) 3 SCC 571 13. 1992 Supp (3) SCC 217 : AIR 1993 SC 477 THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION Nos.18902 of 2008 and 3936, 15220, 16525, 17150, 17442, 17955, 18451, 20618, 20757, 20767 and 22105 of 2009 12.2009 Between: Surada Ramana, S/o.Late Demudu And others …Petitioners AND The District Collector, Visakhapatnam District And others …Respondents. THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION Nos.18902 of 2008 and 3936, 15220, 16525, 17150, 17442, 17955, 18451, 20618, 20757, 20767 and 22105 of 2009 COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) Introduction This group of twelve writ petitions is being disposed of by this common order, as the subject matter is common to all. The controversy is with regard to the authority, jurisdiction and power of Hon’ble the Lok Ayukta (HTL, for brevity) in issuing directions to appoint certain persons in Gangavaram Port Limited (GPL) as part of Rehabilitation & Resettlement Package (RR Package). The controversy also centers round the method and manner adopted by Visakhapatnam District Administration in preparing the list of eligible candidates. Both these issues also involve the right of traditional fishermen to livelihood and the constitutional duty of this Court to protect such people from deprivation and infringement of their right to livelihood in the name of economic development. Right to livelihood Universal Declaration of Human Rights (UDHR) not only recognizes inalienable right to life and liberty (Article 3) and security of persons but also emphasizes right of every person to social security (Article 22), equal opportunity (Article 7) and right to work (Article 23). International Covenant on Political and Civil Rights, by Article 6 recognises right to work, which includes right of every one to opportunity to gain his living by work which he freely chooses or accepts and calls upon the State Parties to achieve the full realisation of this right by taking necessary economic, political and social measures. I n Olga Tellis v Bombay Municipal Corporation[1], the Constitution Bench of Supreme Court laid down that deprivation of livelihood amounts to deprivation of right to life and that a person cannot be deprived of livelihood without due process of law. The relevant placitum from the reported judgment reads as under. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because; no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. (emphasis supplied) I n Narendra Kumar Chandla v State of Haryana[2], the Supreme Court reiterated that Article 21 of Constitution of India protects right to livelihood as an integral facet of right to life. In State of H.P. v Raja Mahendra Pal[3], the content of right to livelihood was explained by the Supreme Court thus. It is true that Article 21 of the Constitution is of the utmost importance, violation of which, as and when found, directly or indirectly, or even remotely, has to be looked upon with disfavour. The violation of the right to livelihood is required to be remedied. But the right to livelihood as contemplated under Article 21 of the Constitution cannot be so widely construed which may result in defeating the purpose sought to be achieved by the aforesaid article. It is also true that the right to livelihood would include all attributes of life but the same cannot be extended to the extent that it may embrace or take within its ambit all sorts of claims relating to the legal or contractual rights of the parties completely ignoring the person approaching the court and the alleged violation of the said right. Social justice is a Constitutional promise. Directive Principles of State policy in Articles 38 and 39 of Constitution require the State to promote welfare of the people and direct its policy to secure that ownership and control of the material resources of the community are distributed so as to subserve common good and operate an economic system, which does not result in concentration of wealth. Making effective provision for securing the right to work, ensuring a living wage, ensuring public health and promoting educational and economic interests for downtrodden people are some of the goals set by the Constitution. Therefore, right to livelihood cannot be easily interfered with nor can be compensated adequately by distributing free land, money and facilities, which would be user-friendly. Background Facts (i) Development of Gangavaram Port Government of Andhra Pradesh issued orders in G.O.Ms.No.130, TR&B (Ports) Department[4] dated 06.9.2000 communicating their decision to develop Gangavaram Port under public private sector participation (PPP mode) to improve infrastructure in the State and cater to present and future needs of the region. M/s.L&T Rambole, were retained as project consultants. By a process of international competitive bidding, a consortium led by M/s.DVS Raju & New Wave Securities and Industrial Ltd was selected as preferred bidder and orders were issued accordingly vide G.O.Ms.No.112, TR&B (Ports) Dept., dated 17.7.2002. The bidder was incorporated as Special Purpose Company (SPC) namely, Gangavaram Port Limited (GPL). The documentation process of new port involved Department of Ports and bidder entering into State support agreement, Shareholders agreement and Concession agreement as contemplated in the letter of intent. In that connection, five issues were raised with regard to valuation of the land given to developer, concession period, equity investments, right of lenders and performance parameters and penalties. A Cabinet sub-committee went into these issues and advised the Government on the modalities and contents of the agreements to be entered into with developer. It was agreed that on termination of the concession period, escalation of the land at 6.5% compounded annually would be shared by stakeholders on prorata basis. Be it noted that the Government allowed Rashtriya Ispat Nigam Limited (Vizag steel plant) to part with Acs.1,400.00 of their land for Port at a cost of Rs.2,86,000/- per acre and another extent of Acs.400.00 of Government land to the developer at Rs.1,50,000/- per acre. The construction of Gangavaram Port is by GPL. They selected a site at Dibbapalem village on the shores of Bay of Bengal, as an ideal one for development of deep water, all weather, multi purpose port. In addition, GPL also required, asked for and got huge extent of land for construction of port infrastructure like godowns, platforms, workshops, ship repairing bay etc. (ii) The plight of fishermen communities Dibbapalem was situated on the seashore. All the fishermen of the village and fishermen of Gangavaram, Jalaripallepalem, Pallepalem, Chinapallepalem and Pedapallepalem (hereafter called, Gangavaram) also had their sea front to go for fishing in Dibbapalem village. If Dibbapalem village is removed to give place to port not only its fishermen but the people of Gangavaram and its four hamlets would have no convenient sea shore to launch their fishing boats. The imminent reality of losing seafront to go for fishing into sea and thereby losing livelihood led to spontaneous (as some of the counsel say) agitation by all fishermen. All of them opposed establishment of port as they would lose their livelihood and the right to carry on their profession of fishing. Law and order regulations were made, unlawful assemblies were prohibited, arrests were made, cases were filed in criminal courts and in the police firing many persons were injured and one fisherman killed. Visualising opposition to establishment of port and stumbling block justifiably created by the local fishermen, the District Collector and GPL reached an agreement with villagers of Dibbapalem for providing RR package, which included employment to the villagers in Gangavaram port. The same was not the case with other villages. Some time in October 2005, District Collector reported that Gangavaram fishermen have not yet come to an understanding for signing an agreement and that he suggested to follow RR policy guidelines issued in G.O.Ms.No.68, Irrigation &CAD (Project Wing) Department, dated 08.4.2005. Accordingly Government issued G.O.Ms.No.236, TR&B (P1) Dept., dated 08.4.2005 appointing Joint Collector, Visakhapatnam, as administrator and Secretary to the Government in TR&B Department as commissioner for implementing RR package to Gangavaram port project. (iii) Agreements with fishermen of Gangavaram and Dibbapalem (a) Even before Government of Andhra Pradesh issued G.O.Ms.No.236, dated 08.11.2005, Villagers of Dibbapalem, District Collector and officials of GPL in the presence of Pendurthi MLA entered into RR agreement on 04.8.2005. The villagers agreed to cooperate with construction of port, accept RR package announced by the District Collector and discontinue fishing operations after the commencement of construction of port. GPL agreed to provide employment to 250–300 eligible persons in addition to providing opportunities to work with port contractors. (b) On 17.10.2005, District Collector, Joint Collector, Director of Ports, President of GPL and local MLA convened the meeting of Dibbapalem fishermen at fish landing centre. There was another agreement, which while reiterating the commitment of GPL to provide employment as per agreement dated 04.8.2005, it was agreed to construct a road from Gangavaram to Yarada, which would be developed as fish landing centre. (c) On 04.9.2006, there was yet another agreement among Dibbapalem villagers, District Collector, representatives of GPL and local MLAs. This was treated as a supplemental agreement to earlier ones. Dibbapalem residents agreed to vacate village within six months and accept house sites with permanent pattas at Srinagar Colony and Dayal Nagar Colony. The agreement also provided for payment of cash for rehabilitation purposes. (d) As can be seen, the earlier three agreements were with villagers and residents of Dibbapalem. Probably for this reason, on 05.5.2006, no less than Hon’ble Minister for Commercial Tax and Law convened the meeting with fishermen and village elders of Gangavaram, Sampradaya Matsyakarula Seva Sangham (petitioner in W.P.No.17150 of 2009). The participants in the meeting reached an agreement. It was agreed to provide a lump sum amount of Rs.25,000/- to owner of each boat (109 boat owners), Rs.15,000/- each for shifting the boat, Rs.3,000/- per month towards livelihood till completion of construction of Jetti at Yarada, Rs.3,000/- per month towards boat maintenance charges till completion of Jetty. Insofar as 664 kalasi fishermen working on the boats are concerned, it was agreed to provide lump sum amount of Rs.25,000/- for each family and Rs.3,000/- each per month towards livelihood till the completion of Jetty and Rs.2,000/- per month to each fisherman’s family engaged in sale and drying of fishes, in addition to Rs.20,000/- as lump sum compensation. Importantly, it was agreed that GPL would provide jobs to 300 persons after giving practical training as part of RR package. (e) The last one of the agreements was arrived in a meeting held in the chambers of Hon’ble Minister for Infrastructure, Investments, Airports and Natural gas, Sri Mopidevi Venkataramana Rao, on 25.3.2008. Besides officials of Government, GPL, President and Secretary of Gangavaram Fishermen Welfare Society and a few village elders were present in the meeting. While reiterating RR package earlier agreed to, Government agreed to withdraw of police cases instituted against the villagers. As can be seen from these five agreements, the first three agreements were in relation to RR policy to the fishermen, residents of Dibbapalem village. The agreements dated 05.5.2006 and 25.3.2008 came into existence in the presence of Hon’ble Ministers of the State and they related to villagers and fishermen of Gangavaram. There is no dispute that RR package has been implemented insofar as Dibbapalem village is concerned, although there are few complaints in relation thereto. The dispute in these cases is with regard to RR package especially providing employment by GPL insofar as Gangavaram is concerned. (iv) The complaint to Hon’ble the Lokayukta On 19.7.2007, Chodipalli Raju, Executive Secretary of North Andhra Fishermen Youth Welfare Association (petitioner in W.P.No.20618 of 2009) filed a complaint before HTL alleging inaction on the part of the District Collector and Special Officer, Gangavaram port, in not taking steps for appointment of 300 fishermen in GPL. While alleging that their memorandum dated 05.2.2007 along with list of 300 fishermen, who lost livelihood, was not considered, complainant prayed for appropriate orders from HTL. A report of the District Collector was called for. By his letter dated 01.8.2007, District Collector submitted as under. A survey was conducted by the Assistant Director of Fisheries and AD, Fisheries furnished a list of 429 active fishermen in Gangavaram village whose livelihood is likely to be substantially affected due to construction of Gangavaram Port. After the incident of firing on 27.3.2006 several rounds of discussions were held to arrive an amicable solution. After several rounds of negotiations, a list of 2826 fishermen was considered for extending package. The details are as follows: a) No. of boat owners : 115 b) Fishermen working on the boats : 1100 c) Others who depend on fishing activity: 1611 It is further submitted that at the time of negotiations, it was also promised to the fishermen of Gangavaram that employment would also be provided in the Port as per requirement and suitability upto maximum of 300 jobs after construction of Gangavaram Port, which was agreed by the fishermen. Accordingly, an agreement was also entered by the Hon’ble Minister for Commercial Taxes with Sampradaya Matsyakarula Seva Sangham on 05.5.2006. It is also submitted that the Committee was directed to construct grama sabha in the village for the villages of Gangavaram, Jalaripallipalem, Pallipalem, China Pallipalem, Pedapallipalem for identifying the actual fishermen whose livelihood is substantially affected due to construction of Gangavaram Port. The list furnished by the petitioner would also be read in the grama sabha for identification of genuine fishermen for imparting training and to provide jobs in Gangavaram Port after commencement of port operations. (emphasis supplied) HTL came to the conclusion that identification of eligible persons for employment upto maximum of 300 had not been completed and accordingly called further report. During the enquiry/preliminary verification by HTL, District Collector and Special Officer of Gangavaram port submitted reports and the enquiry went on for a period of about four years. During the course of the enquiry, on 31.10.2008, HTL directed Special Officer to enquire into first list of 300 persons prepared by North Andhra Society. Thereafter a list was prepared by Special Officer, which was placed before HTL on 02.2.2009. Final order was passed on that day directing GPL to provide employment to identified 317 eligible persons on priority basis in accordance with seniority without any deviation. Be it noted that HTL heard North Andhra Society, Fishermen Development Association as well as other representatives, before passing orders on that day. (v) Challenge before this Court (i) The batch of twelve writ petitions can be divided into four categories. Andhra Pradesh State Fishermen Development Association (referred to in this order as, Fishermen Association), Gangavaram Sampradaya Matsyakarula Seva Sangham (referred to in this order as, Sampradaya Sangham) and eight individuals filed W.P.Nos.15220, 17150 and 17442 of 2009 respectively, assailing impugned order dated 02.2.2009. (ii) North Andhra Fishermen Youth Welfare Association (referred to in this order as, North Andhra Association) filed W.P.No.20618 of 2009, in effect, for implementation of the order of HTL. (iii) The following writ petitions are filed by individuals assailing their non-inclusion in the list prepared by Special Officer and for directions to consider their cases for appointment in GPL as per the RR package. In a few cases, the removal of their names from the list of eligible persons is challenged. These are: W.P.Nos.3936, 16525, 17955, 18451 and 20767 of 2009. (iv) W.P.No.18902 of 2008 is filed by Fishermen Association, W.P.No.22105 of 2009 is filed by 50 individuals and W.P.No.20757 of 2009 is filed by 24 individuals seeking a direction to provide benefits including employment as per the proceedings dated 18.6.2007 of the Special Officer and as per the agreement dated 05.5.2006. Submissions and Issues For petitioners, M/s.P.V.Krishnaiah, Vedula Srinivas, K.S.Murthy, V.Raghunath and P.Krishna Prasad made submissions and other counsel appearing for petitioners adopted them. Learned Government Pleader for Irrigation, Mr.Y.V.Ravi Prasad, learned Counsel for GPL and learned Standing Counsel for HTL, Mr.Ravindra, made submissions. It is to the credit of all these counsel that, to the extent possible, all of them avoided traditional adversary litigation approach and placed before us the position of their clients with regard to valuable right to life and livelihood of fishermen. The submissions made by petitioners’ counsel centered round the power of HTL under Andhra Pradesh Lokayukta Act, 1983 (the Act, for brevity) to pass the impugned order. They contend that the complaint filed by North Andhra Association is not maintainable as it does not contain “allegation” and, therefore, the impugned order suffers from inherent lack of jurisdiction. A reference is made to Institution of A.P. Lokayukta/ Upa-Lokayukta v T.Rama Subba Reddy[5], The Lokayukta for Andhra Pradesh v Dr.B.Seshadri[6] and S.Jagadeswar v The Lok Ayukta of Andhra Pradesh[7]. The counsel appearing in other writ petitions highlight lack of transparency, absence of rational criteria for identifying eligible persons and arbitrariness in preparation of list of eligible persons for employment. Learned Counsel appearing for North Andhra Association submits that the order of HTL is sustainable and that the draft list was prepared after elaborate procedure and giving notice to all. Learned Government Pleader, learned Counsel for GPL and learned Standing Counsel for HTL reiterate their position as elucidated in the counters filed on behalf of their clients. The background of these cases and rival submissions give rise to two issues with regard to jurisdiction and power of HTL to entertain the complaint filed by North Andhra Association and the validity of list of eligible persons prepared by Special Officer and approved by HTL. Jurisdiction of HTL The Act is a legislation providing for appointment and functioning of Lokayukta for investigation of ‘administrative action’ taken by or on behalf of Government of Andhra Pradesh including any omission or commission in connection with or arising out of such action. Under Section 7, HTL or Hon’ble Upa Lokayukta are empowered to investigate any action taken by, or with the approval or at the behest of, inter alia, any public servant or public servants. Placing reliance on Section 7 of the Act and the definition of ‘allegation’, Counsel would submit that representation submitted by North Andhra Association on 19.7.2007 is not a complaint containing an “action” or an “allegation” and, therefore, the same cannot be subjected to preliminary verification. The attention of this Court is invited to Rules 2(ii) and 5 of the Andhra Pradesh Lokayukta and Upa-Lokayukta (Investigation) Rules, 1984 (the Rules, for brevity). It is emphasized that no allegation was made against the District Collector or Special Officer and, therefore, preliminary verification is not warranted. Learned Standing Counsel for HTL would urge that Section 7 read with Section 2(a) of the Act confers jurisdiction on HTL to conduct verification and pass orders and that the complaint in question falls under Section 2(a) read with Section 2(b)(i) of the Act and hence action can be taken under Section 7(1)(iv) of the Act. He supports his argument by making reference to Section 8 of the Act, which enumerates matters not subject to investigation by HTL. We have given our anxious consideration to the submissions made by petitioners. History of legislation in question, the purpose and object for which institution of HTL was established and purposive interpretation, which ought to govern the construction of the statute compel us to reject the petitioners’ plea. In our considered opinion, even when a representation cannot be treated as a complaint containing an allegation but complaining an action, inaction or omission by or at the best of public servant, HTL is bound to conduct preliminary verification if he is of opinion that such preliminary verification is necessary in the interest of accountability, purity and transparency of administration. We are also convinced that preliminary verification into all complaints need not lead to investigation and report under Section 12 of the Act warranting disciplinary action against the erring public servant. In his discretion, HTL can at the stage of preliminary verification itself set right the action as well as actors so as to reduce effects of mal administration. In every complaint, there need not be charges of corruption or corrupt motive and even in such cases, it is competent for HTL to summon the public servants alleged of inaction, action and of commission and can express displeasure so that a strong message goes out that there is omnipresent HTL to oversee administrative excesses. The reasons for this conclusion are as follows. The jurisdiction of HTL is initiated by complaint made by any person relating to any allegation in respect of an action. Section 9(1) of the Act speaks of such “complaint”, “allegation” and “action”. These are defined in the Rules and the Act as under. As per Rule 2(ii) of the Rules “complaint” means a statement made in writing to the Lokayukta or Upa-Lokayukta by a complainant containing an allegation against a public servant in respect of an action taken by such public servant. “Action” is defined in Section 2(a) of the Act as follows. 2(a) ‘action’ means an administrative action taken by a public servant by way of decision, recommendation or finding or in any other manner, and includes any omission and commission and failure to act in connection with or arising out of such action; and all other expressions connecting action shall be construed accordingly. A plain reading of the definition of “action” means “administrative action” taken by public servant by way of a decision, recommendation or finding or in any other manner and includes any omission and failure to act in connection with or arising out of such action. “Allegation” is defined in Section 2(b) of the Act, which reads as follows. 2(b) ‘allegation’ in relation to a public servant means any affirmation that such public servant – (i) Has abused his position as such, to obtain any gain or favour to himself or to any other person, or to cause under harm or