WP(C) No.699/2009 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve :11.02.2009 Pronounced on : 13.03.2009 W.P. (C) 699/2009 GOVT. OF NCT DELHI ..... Petitioner Through: Mr. Goolam Vahanwati, Solicitor General of India with Mr. Najmi Waziri and Mr. Rajiv Nanda, Advocates. versus OFFICE OF LOKAYUKTA & ANR. .... Respondents Through: Mr. Parag P. Tripathi, ASG with Ms. Priya Kumar, Advocate. Mr. Bipin Bihari Singh and Mr. Balendu Shekhar, Advocates. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? S.RAVINDRA BHAT, J. * 1. The Government of National Capital Territory, which has preferred these proceedings, under Article 226 of the Constitution of India, claims to be aggrieved by an order of the Lokayukta, Delhi, calling upon it to produce certain files. 2. The essential facts necessary to decide the controversy in this case are set out as follows. The second respondent in these proceedings (hereafter “the complainant”) lodged a WP(C) No.699/2009 Page 2 complaint with the Lokayukta, alleging embezzlement of public money through improper and corrupt means, in regard to the purchase of non-airconditioned Low Floor buses, for the Delhi Transport Corporation. The complainant also claimed action against the Chief Minister of the Govt. of NCT of Delhi, the Minister of Transport and other officials as well as functionaries. This complaint was registered as C-76/LOK/2008/1176; by order dated 17-11-2006, the Lokayukta directed production of records relating to “issuance and processing of tender for purchase of 625 Non AC low floor buses including the record including the decision making process”. The NCT was asked to produce such records in the hearing scheduled on 17-12-2008. 3. The NCT relies on the proceedings recorded by the Lokayukta, which reflect its contention that buses acquired by the DTC were not comparable with the semi low floor buses purchased by the Chennai Metropolitan Corporation Ltd. The Lokayukta also noticed that the complainant was unrepresented; it stated that: “Last and final opportunity is given to the complainant to be present to substantiate his complaint failing which it will be proceeded on the basis of the record. The record shall be made available to the office of the Lokayukta two days before the next date of hearing. The matter will be put on 9th January, 2009 at 11: AM” 4. The proceedings held on 9-1-2009, the next date of hearing disclose that the NCT did not produce the record; its counsel pressed several contentions, including the untenability of the complaint, and urged that the substratum of the allegations was false. The NCT also urged that the complainant was liable to be prosecuted for falsehood. It also contended that the Low floor buses procured for the DTC were better than the semi low floor buses acquired by the Chennai Corporation. The Lokayukta recorded that the complainant was unrepresented on that day, viz. 9-1-2009; it also noted that arguments would be continued on 15-1-2009. On the said WP(C) No.699/2009 Page 3 latter date, the complainant’s counsel appeared, and urged that he could not be present on the previous two dates of hearing due to personal problems emanating from “his visit home town” and that he would move an appropriate application. The Lokayukta further recorded the complainant’s submission that court fee of Rs. 500/- had been paid on 20-11-2008; yet no receipt date was evident on the record. On that date, i.e. 15-1-2009, the proceedings further recorded the justification for acquiring the Low floor buses, as well as the judgment of this court in WP 16565/2006, in the context of jurisdiction of the Lokayukta under Section 16 of the Act. The Lokayukta recorded that an annexure listing out some of the questions on which information would be helpful in assisting it in discharging its functions under Section 16 of the Act, was handed over to the NCT’s counsel. It further drew the attention of NCT to the order dated 17-11-2008, concerning production of documents and files. 5. The NCT alleges that on 22-1-2009, the complainant moved an application seeking permission to join the proceedings; the application was unsupported by any affidavit. It urges that though it should not have been taken on record, the Lokayukta did so, and required it (NCT) to respond to it. The NCT contends having filed an application urging the Lokayukta to dismiss or reject the complaint, on 22-1-2009, on grounds that it was baseless, malicious and frivolous. The Lokayukta issued notice to the complainant, which was objected to by the NCT, which urged that the complainant’s application to join the proceedings had not been decided. The NCT also pointed to some errors, said to have been reflected in the previous order of the Lokayukta, dated 15-1-2009, about the date when the complainant’s counsel had submitted, the court fee was deposited. The Lokayukta corrected the date, preferring the complainant’s claim to have deposited the court fee, on 20-11-2009. NCT further contends that the Lokayukta WP(C) No.699/2009 Page 4 was requested to first rule on maintainability of the complaint; it says that the submission was that unless such a ruling was given, the records “need not be produced”. According to the NCT, the Lokayukta was told that if the proceedings were to be treated as suo motu, the documents could be produced. 6. On 22-1-2009, the Lokayukta recorded as follows: “In this connection it may be recapitulated that on 17.11.2008 itself while issuing notice to the Govt. of NCT directions for production of records relating to issuance and processing of tender for purchase of 625 Non AC low floor CNG buses, including the record containing the decision making process, were given and the complaint was posted for hearing on the next date. The complainant was not present on the next date when the matter was adjourned to 9th January 2009 giving the last and final opportunity to be present to substantiate the complainant. However, on 09.01.2009 Ld. Counsel for Respondent was heard on his submission that the buses ordered by the M/s. Metropolitan Transport Corporation Ltd., (Chennai) were the Semi Low floor Buses and not the Low Floor Buses. Mr. Waziri was also heard on the professed benefits and advantages of Low Floor Buses over the ordinary and the Semi Low Floor Buses, to justify the acquisition of the said Low Floor Buses in their entirety. On 15.1.2009 the attention of the counsel had been drawn on the direction given for production of records which had not been complied with. The respondent had prior to 09.10.2009 placed a 92 pages compilation of documents which included articles, copies of the judgments in writ petition, photo copies of the complaint, terms and conditions of supply of passenger buses etc., Mr. Waziri states that he would file appropriate list of documents giving the particulars of the compilation. Let this be done. This is not however, a substitute for the records directed to be produced. The case be come up for further proceedings and hearing on 28.01.2009 at 2.00 PM and for appropriate orders and directions with regard to non compliance of the directions for production of records for which orders are reserved.” 7. On 28th January, 2008, the Lokayukta heard counsel for the NCT and ruled that if the records were not produced on 2nd February, proceedings under Section 175, IPC were to be initiated. The extracts of portions of that order, impugned in these proceedings, without reproducing inessential details are as follows: WP(C) No.699/2009 Page 5 “On 17.11.2008, a notice was issued to the Govt. of NCT, requiring it to produce the record relating to issuance of tenders for purchase of 625 non AC low floor and CNG buses, including the record containing decision making process. The respondent entered appearance on 09.01.09 through Shri Nazmi Waziri, Advocate. Officials of the Transport Department along with Chief General Manager, DTC have been appearing in the proceedings. The respondent through counsel stated that the buses ordered by the Metropolitan Transport Corporation, Chennai were not Low Floor Buses and thus were not by the unsuccessful Tenderer failed. Writ Petition and SLP have been dismissed. The complaint was alleged to be false & vexatious. (3) On 17th December, 2008 and 9th January ’09 the complainant was not present. Last and final opportunity was accorded to the complainant to substantiate the complaint failing which it would be decided on the basis of record as available and matter was posted for 15.01.2009. However, the complainant’s counsel appeared on 15.01.2009. He sought permission to join in the proceedings for which an application has been given to the respondent and the same is pending for reply if any respondent & disposal. (4) The Respondent also moved an application seeking dismissal of the complaint as not being maintainable. Respondent also prayed for penalizing and punishing the Complainant for making false complaint u/s 9 (2) of the Delhi Lokayukta & Upalokayukta Act 1995 hereinafter referred to as the Act. The said submission had also been made on 09.01.09. The aforesaid two applications are pending disposal. (5) The respondents seek dismissal of the complaint and also action u/s 9(2) of the Act against the complainant. The complainant of necessity, therefore, has to be heard on the said relief. Moreover, the Complainant’s application for joining in the proceedings to substantiate his complainant is still pending. Records have accordingly to be seen for both these purposes. It does not lie in the mouth of the respondent to decline to produce the records and insist what they term as preliminary objection to the maintainability of complaint being decided, first without production of records. xxx xxx xxx xxx (9) The Ld. Counsel for the respondents argues that they need not produce the records in proceedings emanating from the complaint while they would produce the said records in suo moto proceedings after directions are given. The above plea and stand as taken to say the least is wholly ill advised. In this connection, reference is made to Section 10 and 11 of the Act which are reproduced for facility of reference… (10) xxx xxx xxx xxx The Lokayukta is fully conscious of the ambit and scope and limitation of the jurisdiction under Section 16 of the Act which purely recommendatory containing WP(C) No.699/2009 Page 6 suggestions for improvement etc. In fact the Respondents have to be fully heard on the said aspect. (11) Non compliance of the directions for production of records tantamounts to defiance and non cooperation by an administration professed to be committed to efficiency and transparency. It does not certainly augur well. In the interest of justice, another opportunity is given to the Secretary, Department of Transport or the Officer holding charge of the said Department to produce the records relating to the calling of tenders for 625 Low Floor Buses and the decision making process as also any other relevant records wherein a decision is proposed to be taken for acquisition of Low floor buses or similar low floor buses keeping in mind the total requirement of buses. (12) Secretary, Department of Transport or the Officer holding charge of the said Department personally to produce the above relevant records on 02.02.09 at 2.00 PM failing which proceedings under Section 175 IPC shall be initiated against the persons committing the offence.” 8. The NCT attacks the above order. It argues that the Lokayukta should not have proceeded further with the matter without first determining the maintainability of the complaint. It is contended that the Lokayukta should have first considered the preliminary objection urged by it, and, if the need arose, proceeded to examine the matter further. In this connection, it is contended that Section 10 of the Delhi Lokayukta and Upalokayukta Act, 1995 (hereafter “the Act”) mandates that the Lokayukta has to formulate its procedure. In this case, the Lokayukta did not formulate any procedure, and without determining whether the complaint could be entertained, straightaway proceeded to direct production of documents. It is contended that the procedure sought to be followed is contrary to the Act and Rules framed under it. 9. The Learned Solicitor General for India, who appeared for the NCT, urged that the Act mandated, by Section 9, that the complaint in case it alleged wrongdoing or misconduct of the Chief Minister, had to be in the prescribed form; the complaint, in the present case, was not in WP(C) No.699/2009 Page 7 that form; besides, the court fee prescribed too had not been filed. It was urged that the Lokayukta should have, in all fairness first decided the question of maintainability, since the complainant had without cause, absented himself, and his request to join proceedings had not been granted. Instead, the Lokayukta persisted in demanding production of the file. 10. It is contended that the Lokayukta is virtually conducting a roving inquiry, without first satisfying itself about the feasibility of the complaint before it. Section 10, it is urged, obliges the Lokayukta to first formulate a procedure for holding an inquiry, and thereafter, issue notice to the concerned parties. If need be, after issuance of notice, the power to direct production of documents can be exercised. It is argued that when the complainant or his representative was absent on two dates of hearing, including 9-1-2009, and later caused an application to join the proceeding, the feasibility of continuing with the proceeding had to be first examined. It was in this connection that an application, moved for rejection of the complaint, was filed on 22-1- 2009; the complainant’s application to join the proceeding too was filed and remained pending; no orders were made on it. In the circumstances, the Lokayukta should not have proceeded with the merits of the complaint, and directed production of the relevant records. 11. It was argued that the Lokayukta overlooked that the question of exercising powers under Section 11 would arise, if at all, after the procedure outlined under Section 10 is suitably published or made known to all; thereafter, the material has to be assessed, and subsequent to these, notices on the complaint are to be issued. In the absence of these minimum requirements, the Lokayukta would be free to adopt whatever procedure it chooses. Such an ad-hoc approach cannot be countenanced. WP(C) No.699/2009 Page 8 12. The NCT further contends that the Lokayukta exercises powers either suo motu, or further to a complaint or information; it relies upon Section 7. It is contended that if the proceedings are not suo motu, and if the Lokayukta proposes an inquiry, based on a complaint, it must formally take cognizance of the matter, and issue notice. The proceedings commence after the issuance of such notice and, contends the NCT, the authority (Lokayukta) derives its power to summon records and documents, under Section 11 to aid such inquiry or proceedings. 13. The Lokayukta’s position, articulated through the Additional Solicitor General for India, who represented it, is that the formality of having to issue notice is not a sine qua non for its exercising its power under Section 11. Being invested with the duty of examining complaints and matters, although its reports are not necessarily binding, the Lokayukta possesses procedural flexibility in the conduct of its proceedings. It can, wherever appropriate, decide first to have a “look in” to see whether the complainant’s allegations are merited, and for that limited purpose, call for the records, even at the preliminary stage. At such point in time, the Lokayukta may not necessarily issue notice to the opposite party or authority, in the sense that it calls upon such party to state its version. 14. The Lokayukta further argued that the NCT should not have rushed to the court with the writ petition, as it did. The Lokayukta states that the points sought to be urged as trenching upon its jurisdiction were not appropriately raised by the NCT before it, in the proceedings, or even in the writ petition. It is argued that the scheme of the enactment is such that considerable leeway is afforded to the Lokayukta to formulate its procedure, as is evident from Section 10. Dwelling further on the aspect, it is emphasized that schematically, that provision is placed before Section 11, which enables the authority concerned to summon the records; yet WP(C) No.699/2009 Page 9 the Act does not constrain the power to any particular stage of the proceedings. Having regard to the purpose of the enactment, the widest possible amplitude should be conceded to the Lokayukta in regard to its functioning, and the restricted interpretation, urged by the NCT should not be accepted by the court. 15. The complainant before the Lokayukta, though issued with notice in the writ petition, did not urge anything before the court, at the hearing. The Court had during the hearing suggested that the Lokayukta may first consider ruling upon the pending applications, to avoid further controversy. However, the learned Additional Solicitor General stated that his instructions were to submit that the Lokayukta’s position was that the notice to call for the documents and files was regardless of whether notice were issued in the complaint, and that this Court should rule appropriately give its decision on the issues. 16. Before a discussion on the merits of the case, the scheme of the Act may be noticed. Section 2 (b) defines “allegation” to be “in relation” to a public functionary , “by affirmation that such public functionary in capacity as such” – (i) has failed to act in accordance with prescribed norms of integrity and conduct ii) has abused or misused his position to obtain any gain or favour to himself or to any other person or to cause loss or undue harm or hardship to any other person; iii) was actuated, while so functioning by improper/ corrupt motives or personal interest; iv) is or has at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known resources of income. WP(C) No.699/2009 Page 10 17. Section 2(m) defines a “public functionary” in very broad terms; the expression extends to those holding (and who had held) the position of Chief Minister (of the Govt. of NCT); Ministers, Chairmen of Corporations, Members of Legislative Assemblies, functionaries of local bodies and Corporations, heads of Government companies and corporations, etc. Section 7 sets out the jurisdiction, as it were, of the Lokayukta. It reads as follows: “7. Matter which may be inquired into by Lokayukta or Uplokayukta- Subject to the provisions of this Act, on receiving complaints or other information or suo moto – (a) The Lokayukta may proceed to inquire into an allegation made against a public functionary in relation to whom either the President or Lieutenant Governor is the competent authority; (b) The Upalokayukta may proceed to inquire into an allegation made against any public functionary other than that referred to in clause (a); Provided that the Lokayukta may inquire into an allegation made against any public functionary referred to in clause (b). Explanation :- For the purposes of this section the expressions “may proceed to inquire” and “may inquire” include investigation by any person or agency at the disposal of the Lokayukta and Upalokayukta in pursuance of sub-section (2) of Section 13. 18. Section 8 prescribes what are not subject to inquiry; they are matters referred for inquiry under the Commissions of Inquiry Act, 1952; or matters relating to an allegation against a public functionary, if the complaint is made after expiration of a period of five years from the date on which the conduct complained against is alleged to have been committed. Section 9 prescribes the procedure relating to complaints. Section 9(1) prescribes that complaints have to be in the prescribed form, supported by an affidavit, also in a prescribed form; it (the complaint) has to be accompanied by a deposit of Rs. 500/-. Section 9(2), beginning with a non-obstante clause, enacts that every person “who willfully or maliciously WP(C) No.699/2009 Page 11 makes any false complaint under this Act,” shall, on conviction, be punished with rigorous imprisonment which may extend to three years or with fine which may extend to five thousand rupees or with both. The court concerned has also the power to award compensation; the proviso enacts that the offence can be prosecuted only upon a complaint by the Lokayukta or Upalokayukta. Sections 10 to 12 are as follows: “10. Procedure in respect of inquiry.- The Lokayukta or Upalokayukta shall, in each case before it, decide the procedure to be followed for making the inquiry and in so doing ensure that the principles of natural justice are satisfied. 11. Applicability of Evidence Act and Code of Criminal Procedure.- (1) The provisions of the Evidence Act, 1872 (1 of 1872), and the code of Criminal Procedure, 1973 (2 of 1974), shall as nearly as may be, apply to the procedure of inquiry before Lokayukta or Upalokayukta in the matter of – (i) summoning and enforcing the attendance of any person and his examination on oath; (ii) requiring the discovery and production of documents and proof thereof; (iii) receiving evidence on affidavits; (iv) requisitioning any public record or copy thereof from any court or office; (v) issuing commissions for examination of witnesses or documents; and such other matters as may be prescribed; Provided that no proceeding before the Lokayukta or Upalokayukta shall be invalidated only on account of want of formal proof if the principles of natural justice are satisfied. (2) Proceedings before the Lokayukta or Upalokayukta shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1960 (45 of 1960). WP(C) No.699/2009 Page 12 (3) The Lokayukta or Upalokayukta shall be deemed to be a Civil Court for the Purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). 12. Report of Lokayukta and Upalokayukta - 1. If, after inquiry into the allegations, the Lokayukta or an Upalokayukta is satisfied that such allegation is established, he shall, by report in writing, communicate his findings and recommendations along with the relevant documents, materials and other evidence to the competent authority. 2. The competent authority shall examine the report forwarded to it under sub-section (1) and intimate, within three months of the date of receipt of the report, the Lokayukta or, as the case may be, the Upalokayukta, the action taken or proposed to be taken on the basis of the report. 3. If the Lokayukta or the Upalokayukta is satisfied with the action taken or proposed to be taken on his recommendations, he shall close the case under information to the complainant, the public functionary and the competent authority concerned. In any other case, if he considers that the case so deserves, he may make a special report upon the case to the Lieutenant Governor and also inform the complainant concerned..” 19. Section 13 provides for Staff of Lokayukta and Upalokayukta. Under Section 13 (1), the Government has to provide officers and other employees to assist the Lokayukta and Upalokayukta in the discharge of their functions under this Act. Section 13 (2) provides for placing, at the disposal of the Lokayukta and Upalokayukta, any officer or investigating agency. It reads as follows: “without prejudice to the provisions of sub-section (1), the Lokayukta or an Upalokayukta may, for the purpose of conducting inquiries under this Act, utilize the services of :– i. any officer or investigation agency of the Government or the Central Government, with the concurrence of that Government, or ii. any other person or agency.” WP(C) No.699/2009 Page 13 20. The Delhi Lokayukta and Upalokayukta (Investigation) Rules, 1998, (hereafter “the Rules”) were framed under provisions of the Act. Rule 2 contains definitions; sub rule (ii) defines complaint to mean “an allegation made in writing to the Lokayukta or the Upalokayukta with a view to their taking action under the Act”. Rule 2 (iv), which appears to