: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3079 OF 2004 WRIT PETITION NO.3079 OF 2004 WRIT PETITION NO.3079 OF 2004 M/s.A.V.Bhat Housing Company .. Petitioner. Versus The Hon’ble Upa Lokayukta Maharashtra State, Mumbai & Ors. .. Respondents. Mr.Y.S.Jahagirdar i/b.Mr.G.S.Godbole for the petitioner. Mr.C.R.Sonawane, A.G.P. for respondent No.1. Mr.Tejas Deshmukh for respondent No.2. Mr.Sanjay Kshirsagar for respondent No.3. Mr.R.G.Ketkar for respondent Nos.4 and 5. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & R.Y. GANOO, JJ. R.Y. GANOO, JJ. R.Y. GANOO, JJ. DATE : 19th June, 2008. DATE : 19th June, 2008. DATE : 19th June, 2008. P.C.: P.C.: P.C.: 1. By this petition, the petitioner is challenging the order dated 27.2.2004 passed by the Upa Lokayukta, Maharashtra State, Mumbai. : 2 : 2. A complaint before the Upa Lokayukta was filed by the residents of Sarita Nagari Phase-II Co-operative Housing Society Limited, Parvati, Pune i.e. respondent No.3. In the complaint, it was stated that the scheme of Sarita Nagari Phase-II was developed on the Plot No.119/1 of Parvati, Pune under the U.L.C. and flats were handed over in 1999. It was claimed that the Pune Municipal Corporation has sanctioned additional structures which are structurally connected to the existing building in violation of the Flat Owners Act and that the promoter is in the process of developing the property. It was claimed that the Pune Municipal Corporation has issued a stop work notice to M/s.A.V.Bhat Housing Company and other Co-operative societies. However, the corporation permitted M/s.A.B.Bhat Housing Company to start the construction activities. According to the complainant, it was in violation of the D.C. Rules. It is also stated therein that the complainant was made the complaints to the Municipal Commissioner several times, who assured that legal action would be taken. It is claimed that opinion of Senior Legal Adviser of the Corporation was obtained. The opinion of Senior Legal Adviser was in favour of the complainant but no action is being taken by the Corporation on this issue and Corporation is favouring the promoter. It was claimed that though the promoter is : 3 : guilty of misleading corporation, he is being favoured without considering the legal opinion. 3. The relief that was sought was cancellation of revised layout and handing over possession of open spaces. It is pertinent to note here that the promoter against whom allegations have been made in the complaint was not even joined as a party to this complaint. The present petitioner, who is promoter, appeared voluntarily and raised objection to the jurisdiction of the Upa-Lokayukta to entertain the complaint. In view of the fact that civil suits claiming identical reliefs have already been filed by the complainants before the Civil Court, it was claimed that the Upa Lokayukta does not have jurisdiction to entertain the complaint. The Upa Lokayukta made order on the complaint on 27.2.2004 and directed that action as per paragraph Nos.5,6,7,8 and 9 should be completed within a period of one month from the receipt of these recommendations. 4. The recommendation in paragraph No.5 is that till the completion of investigation into the FSI, no further construction of any sort should be permitted and the building plans which have been sanctioned should be cancelled. Recommendation in paragraph No.6 is that the : 4 : Corporation should direct the builder to discontinue the water supply to those structures. Recommendation in paragraph No.7 is action about removal of structure. Recommendation in paragraph No.8 is about the access road and the direction is sought in paragraph No.9 to the Commissioner to enquire as to how the plans came to be sanctioned. 5. The petition has been filed by petitioner, who is the builder and who is described in the complaint as the promoter. 6. The learned Counsel appearing for the petitioner submits that the complaint was not maintainable before the Upa Lokayukta in view of the provisions of Section 8 of the Maharashtra Lokayukta and Upa-Lokayukta Act (46 of 1971). He submits that civil suits have been filed by the complainant seeking identical reliefs and, therefore, the complaint could not have been entertained. He submits that though the ultimate power vested in the Upa Lokayukta by Section 12 of the Act is to make recommendations by the order, what has been done is that the directions have been issued to the Corporation which is clearly beyond the power of the Upa Lokayukta. It was submitted that the order passed by the Upa Lokayukta is clearly beyond the : 5 : powers of Upa Lokayukta. 7. We have heard learned Counsel appearing for the complainants. They submit, relying on a judgement of a Division Bench of this Court in the case of Vishwasrao Vishwasrao Vishwasrao Chudaman Patil v/s. Lokayukta, State of Maharashtra & Chudaman Patil v/s. Lokayukta, State of Maharashtra & Chudaman Patil v/s. Lokayukta, State of Maharashtra & Ors. reported in 1985 Mh.L.J. 54 Ors. reported in 1985 Mh.L.J. 54 Ors. reported in 1985 Mh.L.J. 54, that though the reliefs sought and the allegations made in the complaint are overlapped and though the reliefs that are claimed before the Upa Lokayukta might have been claimed in the civil suits, still Upa Lokayukta had the jurisdiction to entertain the complaint in so far as allegations made against the officers of the Corporation are concerned. 8. With the help of the learned Counsel appearing for both the sides, we have gone through the record. The learned Counsel appearing for Corporation submitted that the order cannot sustain because there are observations made in the order which is passed only on the apprehensions without there being any foundation in the record. 9. Now, it is clear from the record that the reliefs that were sought by the complainants were :- : 6 : i) Cancellation of revised layout dated 13.8.2002 and 15.3.1999 in respect of Survey No.119/1 showing additional structures and road; ii) Handing over open space proportionately to the actual construction on the plot No.119/1 as per the D.C. Rules for the two complainant societies. 10. It is a common ground that civil suits have been filed before the Civil Court claiming identical reliefs. Section 8(1) (b) of the Act is relevant which reads as under :- "8. (1) Except as hereinafter provided, the Lokayukta or an Upa-Lokayukta shall not conduct any investigation under this Act in the case of a complaint involving a grievance in respect of any action,- (a) ..... (b) if the complainant has or had any remedy by way of proceedings before any tribunal or court of law; Provided that, the Lokayukta or an Upa Lokayakta may conduct an investigation notwithstanding that the complainant had or has such a remedy if the Lokayakta or, as the case may be, the Upa Lokayakta is satisfied that such person could not or cannot, for sufficient cause, have recourse to such remedy". 11. Perusal of the above provision makes it clear that : 7 : the Lokayukta and Upa Lokayukta can not conduct any investigation under the Act in the case of a complaint involving a grievance in respect of any action if the complainant has or had any remedy by way of filing proceedings before any tribunal or Court of law. The proviso is not relevant in this case because, admittedly, the complainant had filed civil suit. It is, thus, clear that if ordinary remedy under the law is available, then, complaint cannot be entertained by the Upa Lokayukta. It is interesting to see how this aspect of the matter has been considered by the Upa Lokayukta. Observations are to be found in paragraph 4 of the said order which reads as under :- "4. There are limited points which need our present consideration and urgent action and which have been urged during hearings. In regard to the point made by M/s.A.B. Bhat Housing Company that the complainants have filed suits in the Civil Court and these matters are pending viz. C.S.No.694 of 2001 and 1277 of 2002 and the subject matter of the suits is identical and hence this authority should not have jurisdiction to consider the matter, the complainants have already clarified that they could not get interim relief in the Court in the above cases which is why they have approached this authority for immediate relief as they apprehend that the public servant concerned, the Commissioner of the Municipal corporation may not extend necessary cooperation and might favour the builder. This authority was therefore satisfied that the relevant proviso to Sec.8(2) of the Act was attracted and the matter was taken up and further discussions on this is not necessary". : 8 : 12. Perusal of the above observation makes it clear that according to the Upa Lokayukta though remedy is available to the complainant and that they have adopted the same, still only because they had applied for temporary injunction in those civil suits and that injunction has not been granted and they have approached the Upa Lokayukta for immediate relief, the complaint can be entertained. We do not think that any elaborate reasons are required to be given for saying that these observations are perverse and show total lack of understanding of the law. In our opinion, therefore, when the Upa Lokayukta found that there is a civil suit pending, an application seeking identical interim reliefs before the Civil Court was made and the Civil Court has declined to grant that relief, he could not have proceeded further in the matter and should have left the complainant to follow the usual remedy against the order denying interim order. The complainants had remedy available to them against those orders. Filing of complaint before the Upa Lokayukta obviously was not one of the remedies open to the complainant against the order of the Civil Court denying interim relief to the complainants. 13. Perusal of the above quoted paragraph from the order of the Upa-Lokayukta also shows that the Upa : 9 : Lokayukta, who has made the order also did not understand the nature of the jurisdiction conferred on him by the Act. The Upa Lokayukta by himself had no power to grant any relief. The ultimate relief that the Upa Lokayukta can grant is make recommendations. The power of the Upa Lokayukta of making final order is contained in Section 12 of the Maharashtra Lokayukta and Upa Lokayukta Act (46 of 1971). Perusal of that provision shows that all that the Upa Lokayukta can do is to make a report in writing, recommend the action against a public servant and the competent authority to remove injustice or undue hardship and in the above quoted paragraph, the Upa Lokayukta observes that the complainants have approached him for immediate reliefs under Section 12 of the Act. What has been done by the Upa Lokayukta in this case is that he issued directions in paragraph 5 of the said order. The Upa Lokayukta observes thus :- "5. ..... Till the above exercise is completed and a clear picture regarding the FSI available in the plots allocable to the two complainant societies and also to Sarita Vaibhav both put together is completed, no further construction of any sort which has not commenced can be permitted on the site. All construction plans which has been sanctioned and not started should stand cancelled. The plinth construction cannot also be allowed to go on further in Sarita Vaibhav". 14. Perusal of the above quoted paragraph clearly : 10 : shows that Upa Lokayukta issued directions to the Corporation which is clearly beyond his jurisdiction. 15. So far as the submission that the Upa Lokayukta has a power to investigate into the allegations made against public officers is concerned, perusal of the complaint shows that the only complaint against the public officer was that the Commissioner is not acting on the legal advice given by the Senior Legal Adviser of the Corporation. In the order, we do not find any finding recorded by the Upa Lokayukta as to what was the opinion given by the Senior Legal Adviser and the Upa Lokayukta does not find any fault with the Commissioner on that count. What is alarming is, the Upa Lokayukta finds that it is necessary for him to issue directions because he apprehended that the Commissioner of the Corporation may not extend necessary cooperation and might favour the builder. We do not find any foundation in the record for making such a wild allegation against the Commissioner. If it was apprehended that the Commissioner might favour the builder, we fail to see what was the point in recommending to the Municipal Commissioner himself that he should hold investigation. We also find that the Commissioner was also not joined as respondent in the complaint. : 11 : 16. In our opinion, the principal on which the provisions of Section 8 of the Act are based is that if usual remedy is provided by law for securing reliefs, then, the Upa Lokayukta should not interfere in the matter because if parallel enquiries are permitted by the usual forum and the Upa Lokayukta, it is possible that two independent authorities, functioning under the same legal system may reach contradictory conclusions on the basis of similar material and if that is permitted, that may harm the legal system itself. In our opinion, therefore, when the remedy of the civil suit was adopted, there was no justification for the Upa Lokayukta to interfere in the matter. 17. In our opinion, therefore, following order would meet the ends of justice :- a) The order dated 27.2.2004 impugned in this petition passed by the Upa Lokayukta is set aside. b) The complainant who is respondent No.3 is directed to pay costs of this petition to the petitioner, quantified at Rs.5,000/-. : 12 : 18. Rule is made absolute accordingly with no order as to costs. (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)