Shailendra Kumar Upadhyay vs State Of U.P. And 3 Others
2019 Latest Caselaw 406 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - C No. - 4223 of 2019
 

 
Petitioner :- Shailendra Kumar Upadhyay
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shailendra Kumar Upadhyay
 
Counsel for Respondent :- C.S.C.,Devi Prasad Mishra
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

1. Heard Sri Shailendra Kumar Upadhyay, learned counsel for the petitioner and learned Standing Counsel as well as Sri Nisheeth Yadav, learned counsel for the respondents.

2. This writ petition under Article 226 of the Constitution has been filed seeking a writ of mandamus commanding respondents to ensure compliance of their own order dated 29.6.2018, annexure 5 to the writ petition, wherein Zonal Officer, Allahabad Development Authority, Allahabad (now Prayagraj Development Authority, Prayagraj) (hereinafter referred to as "P.D.A.") has found certain constructions raised by respondent 4 as unauthorized, non-compoundable and in violation of Section 14 and 15 of U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as "Act, 1973") and has directed respondent 4 to demolish itself unauthorized construction otherwise it shall be demolished by respondents 2 and 3 and necessary expenses shall be recovered from respondent 4.

3. Petitioner's grievance is that the aforesaid order was passed on 29.6.2018 and there is no obstruction in its execution but for the reasons other than bonafide (better known to respondents 2 and 3), said order has not been enforced till date and unauthorized construction has not been demolished, though more than six months have already passed. It is also pointed out that earlier also, petitioner approached this Court in Writ Petition No.18694 of 2018 pointing out that demolition notices were issued from time to time in respect of unauthorized construction of respondent 4 but no action was taken. On the statement made by counsel for PDA, writ petition was finally disposed of vide judgment dated 23.5.2018 which reads as under :-

"Heard Mr. Abhishek Tiwari, learned counsel for the petitioners and Mr. Yash Tandon, learned counsel for respondents 2 and 3. Counsel for respondents-development authority having regard to the prayers made in the writ petition, submits that respondents-authority shall take appropriate action in pursuance of the order of demolition passed earlier, including the orders dated 12.12.1996 and 22.12.2006 within a period of eight weeks from today. His statement is recorded and accepted.

In view thereof, nothing further survives in the writ petition. The petition is, accordingly, disposed of. We hope and trust that respondents-authority shall comply the orders within the time mentioned above, if there be no legal impediment. It is needless to mention that respondents-authority shall follow the due process of law, while carrying out demolition proceedings." (emphasis added)

4. Thereafter, respondent 3 issued notice dated 26.5.2018 and then passed order dated 29.6.2018 but the same has not been implemented and executed till date.

5. Sri Nisheeth Yadav, Advocate has put in appearance on behalf of respondents 2 and 3 and when questioned as to why no action has been taken and authorities were sitting idle over the matter, he could not give any reason and said that authorities were busy in Kumbh Mela and appropriate action would be taken in a short time. We find it surprising that there was already an order of this Court in which, it was stated on behalf of respondents 2 and 3 that appropriate action would be taken in eight weeks i.e. two months and, later on, order was also passed on 23.5.2018 but till date, except passing order for demolition, no concrete action has been taken by respondents 2 and 3 and they are conveniently sitting tight over the matter. This clearly demonstrates some thing fishy and collusive on the part of respondents 2 and 3 with respondent 4, hence, we called upon respondent 3 to inform the Court, why no action has been taken.

6. Sri Shushil Kumar Chaubey, Zonal Officer appeared and informed the Court that process of demolition has already started and demolition team alongwith requisite machines etc. has already reached the site. When questioned why no action was taken earlier and more than six months has been allowed to lapse and why petitioner is compelled to file this writ petition again, no reason could be given by Sri Shushil Kumar Chaubey, holding office of respondent 3 except that in September, 2018, he was assigned the work of Kumbh Mela also and that is why he could not pay due attention in the present matter. When inquired, why no action was taken in July and August, 2018 since order of demolition was passed on 29.6.2018, the undertaking given to Court was going to lapse in July, 2018, respondent 3 could give no explanation thereof and surrendered himself to the authority of this Court, tendered apology and said that he would not show such kind of negligence in future and may be pardoned.

7. The above facts are self speaking. This show that executive authorities are really reluctant and apathetic in discharge of their statutory duties reasonably, effectively, well in reasonable time and to some extent honestly.

8. The facts admitted by respondents 2 and 3 are that respondent 4 raised unauthorized construction; an order of demolition was passed directing him to demolish unauthorized construction on his own, failing which it shall be done by respondents 2 and 3; respondent 4 did not make any attempt to demolish on its own; yet respondents 2 and 3, for almost more than half year, did not take any action and sat idle for no valid or satisfactory reason whatsoever.

9. In absence of any reason, this Court has no hesitation in drawing an inference that above inaction is with active connivance, collusion and cumulative act of Institutionalised Bureaucratic corruption, allowing unauthorized constructions, encroachment etc. by individual defaulters and persistence thereof. Despite statutory obligations, responsible officials do not take any appropriate action in time or if they are not accountable at all.

10. The members of public who face difficulty on account of such unauthorized construction etc. have no access to such officials and/or their complaint remain unheeded and unattended compelling them to approach this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution. If this is the way, in which a statutory body like PDA and its officials are functioning, showing blatant inaction, the plight of poor, innocent, honest and law abiding citizens can be well visualised.

11. Laxity on the part of respondents officials is writ large. This laxity, inaction and failure in discharge of official duties cannot be said to be for reasons which are bonafide but in our view it is a blatant example of a facet of corruption on the part of the officials. The real disturbing feature is the lack of interest on the part of officials towards corrective, effective and punitive measures.

12. Corruption has various shades and many a times it is not a mere give and take money in cash but it can be practised in a variety of ways. Normally, it is difficult to prove corruption by direct evidence unless one is caught red-handed accepting undue advantage but here things are self-evident still there is a resilient inaction on the part of higher authorities. Though in a civilised society, corruption has always been viewed with particular distaste to be condemned and criticised by everybody but still one loves to engage himself in it if finds opportunity, ordinarily, since it is difficult to resist temptation. It is often, a kind, parallel to the word 'bribery', meaning whereof in the context of the politicians or bureaucrats, induced to become corrupt.

13. The Greek Philosopher Plato, in 4th Century BC said, "in the Republic that only politicians who gain no personal advantage from the policies they pursued would be fit to govern. This is recognised also in the aphorism that those who want to hold power are most likely those least fit to do so."

14. While giving speech before the House of Lords William Pitt in the later half of 18th Century said, "Unlimited power is apt to corrupt the minds of those who possess it."

15. Lord Acton in his letter addressed to Bishop Creighton is now one of the famous quotation, "Power tends to corrupt and absolute power corrupts absolutely."

16. Corruption is a term known to all of us. Precise meaning is illegal, immoral or unauthorized act done in due course of employment but literally it means "inducement (as of a public official) by improper means (as bribery) to violate duty (as by committing a felony)." It is an specially pernicious form of discrimination. Apparently its purpose is to seek favourable, privileged treatment from those who are in authority. No one would indulge in corruption at all if those who are in authority, discharge their service by treating all equally.

17. We can look into it from another angle. Corruption also violates human rights. It discriminates against the poor by denying them access to public services and preventing from exercising their political rights on account of their incapability of indulging in corruption, of course on account of poverty and other similar related factors. Corruption is, therefore, divisive and makes a significant contribution to social inequality and conflict. It undermines respect for authority and increases cynicism. It discourages participation of individuals in civilised society and elevates self interest as a guide to conduct. In social terms we can say that corruption develops a range bound field of behaviour, attitude and beliefs.

18. Corruption is antithesis of good governance and democratic politics. It is said, when corruption is pervasive, it permeates every aspect of people's lives. It can affect the air they breathe, the water they drink and the food they eat. If we go further, we can give some terminology also to different shades of corruption like, financial corruption, cultural corruption, moral corruption, idealogical corruption etc. The fact remains that from whatever angle we look into it, the ultimate result borne out is that, and the real impact of corruption is, the poor suffers most, the poverty groves darker, and rich become richer. It also results in sufferance to honest law abiding citizens, and enjoyment of illegal acts by violators. It is sheer discrimination violating Article 14 of the Constitution.

19. In the case in hand, it may not be necessary for this Court to go in the concept of corruption further in depth and suffice it to observe that despite undertaking made in this Court, still no effective steps have been taken to ensure compliance of law. We are also surprised that even superior authorities of PDA have turned a blind eye. They are under an obligation to take appropriate action, civil, criminal and departmental, as the case may be, against erring officials.

20. In P. K. Chinnasamy Vs. Government of T.N. and others, AIR 1988 SC 78 Court said that every public servant holds office in trust to the public and, therefore, to justify expenditure of public revenue, a duty is cast upon him to discharge his duty with integrity and best ability commensurating to the requirement of the office. Superior officers discharging supervisory powers are under an obligation to ensure that officers, lower in rank, are not indulged in corrupt, illegal practices, defalcation or laundering of public money. Whenever they come to such a situation where one or more officers have not discharged their duties showing utmost integrity and have misappropriated or caused loss to public exchequer, immediate appropriate severe action is needed.

21. We are sorry to observe that senior officers have failed to perform their duties as expected in law from them. It is not a question of mere inaction on the part of public servants but it is about the basic attitude, aptitude and character including conduct, which need to be taken into account. In the present case, laxity on the part of respondents 2 and 3 has resulted in persistence of an illegality i.e. unauthorized construction. In this case, it is one such illegality, but many are existing and everyone may not come to Court. We have no hesitation in putting on record that omission of even a small level of corruption ultimately grows cancerously. This country has now reached a stage where we find level of corruption running in bulk violation, appropriation of several thousand of crores and going to even lacs of crores. Everyone wherever possible, is indulging in such activities depending on one's capacity, capability and opportunity. This Court does not mean to say that all are corrupt. Fortunately, that is not so. Still we have sufficiently large number of people who do not indulge in such activities and bold enough to discard any attempt, if made by someone, but those who want to take advantage of such widespread corruption, have now become so fearless that they can dare to remain undaunted and go to any extent to lure those who are in authority, to seek favour in one or the other manner. In their belief, everyone has some price, degree may differ. Fortunately, this country still have sufficiently large number of people who are beyond such vice. Probably it is for this reason, we are still marching ahead and developing with galloping pace but now time has come when stern steps have to be taken with determination and cementised will to nip out corruption at every level, lest it may be too late.

22. This country has already celebrated more than seventy years of independence but still we are not able to check corruption which is deep rooted in society of which bureaucrats are also a part. It has become an convenient tool and pastime for everyone to talk tough with abhorrence but whenever gets opportunity like to indulge in it.

23. In this more than seventy years of independence, if we search avenues where we have made a considerable national development and that too multifold, the obvious discovery would be 'corruption'.

24. It has various shades. It is not confined to only one field of acceptance of bribe, cash and kind, but has different colours and nuances.

25. There are some statutes in the name of checking/preventing this menace, but the some are virtually toothless, paper tiger. These statutes have not proved at all, in actual sense, deterring measures for civil servants and others engaged in such activities. In fact, these activities are beyond any limits and bounds. They have crept in all the wings of State, whether executive, legislature or even judiciary.

26. Corruption has been defined in different dictionaries and some of which, useful for our understanding, may be reproduced as under.

27. "The Concise Oxford Dictionary of Current English" published by Oxford University Press, first published in 1995, at page 301 defines corruption as under:

"Corruption: 1 moral deterioration, esp. widespread. 2 use of corrupt practice, esp. bribery or fraud. 3 a irregular alteration (of a text, language, etc.) from its original state. b an irregularly altered form of a word. 4 decomposition, esp. of a corpse or other organic matter. [Middle English from Old French corruption or Latin corruptio (as Corrupt)]."

28. In P. Ramanath Aiyer "Concise Law Dictionary With Legal Maxims, Latin Terms & Words and Phrases" published by Lexis Nexis Butterworths Wadhwa Nagpur, Third Edition Reprint 2010, at page 268:

"Corruption. Something against law; something forbidden by law, as certain acts by arbitrators, election or other officers, trustees; an act done with intent to gain an advantage not consistent with official duty and the rights of others."

29. In "Judicial Dictionary" by KJ Aiyer, 14th Edition, Lexis Nexis Butterworths India, New Delhi, 2007, at page 288:

"Corruption. The term covers 'criminal misconduct'. A public servant is said to commit an offence of criminal misconduct in the discharge of his duty, if he, by corrupt or illegal means, or by otherwise abusing his position as a public servant, obtains for himself or for any other person, any valuable thing or pecuniary advantage.

An attempt to obtain a bribe in a single case, which was never paid, does not fall under cll (a), (b) or (d) of s 5, and therefore, is not 'corruption', within the meaning of the Prevention of Corruption Act 1947.

30. In "Encyclopaedic Law Dictionary (Legal & Commercial)" by Dr. A.R. Biswas 3rd Edition 2008, published by Wadhwa and Company, at page 369:

"Corruption. Corruption is impairment of integrity, virtue or moral principle, depravity; inducement to wrong by bribery or other unlawful or improper means; a departure from honesty, integrity or fair dealing."

31. In the context of some statutory provision or even otherwise the word "corruption" has been explained in various decisions by the Courts also and some of such may be referred as under.

32. In Secretary, Jaipur Development Authority Vs. Daulat Mal Jain, 1997 (1) SCC 34:

". . . . When satisfaction sought in the performance of duties is for mutual personal gain, the misuse is usually termed as 'corruption'."

33. In High Court of Judicature at Bombay Vs. Shirishkumar Rangrao Patil, 1997(6) SCC 339:

"Corruption, appears to have spread everywhere. No facet of public function has been left unaffected by the putrefied stink of 'corruption'. 'Corruption' thy name is depraved and degraded conduct...... In the widest connotation, 'corruption' includes improper or selfish exercise of power and influence attached to a public office."

34. In B. R. Kapur Vs. State of T.N., 2001(7) SCC 231:

". . . . scope of 'corruption' in the governing structure has heightened opportunism and unscrupulousness among political parties, causing them to marry and divorce one another at will, seek opportunistic alliances and coalitions often without the popular mandate."

35. In State of A.P. Vs. V. Vasudeva Rao, 2004 (9) SCC 319:

". . . The word 'corruption' has wide connotation and embraces almost all the spheres of our day-to-day life the world over. In a limited sense it connotes allowing decisions and actions of a person to be influenced not by rights or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations."

36. In the context of the Prevention of Corruption Act and Section 161 Indian Penal Code the Courts were mainly concerned as to when it can be said to be an offence and that is how it has been interpreted and some of such decisions may also be looked into. (1942 Rangoon 30; State of Madras Vs. Rajagopala Ayyer, AIR 1956 Mad 613; and, Bishambhar Lal Vs. State of Punjab AIR 1966 Punj 175).

37. In general, the well accepted meaning of corruption is the act of corrupting or of impairing integrity, virtue, or moral principle; the state of being corrupted or debased; lost of purity or integrity; depravity; wickedness; impurity; bribery. It further says, "the act of changing or of being changed, for the worse; departure from what is pure, simple, or correct; use of a position of trust for dishonest gain."

38. The menace of corruption needs be debated, at different forum, so as to enlighten the people, and to pursue them to stand against, and to arm them, so as to route it out.

39. This Court is well aware that in this process, prime responsibility lie on the Executive. But in reality it is now of paramount importance that judiciary must also take this task upon itself. The cases involving corruption must be dealt with extraordinary pace. It must ensure that those indulged in corruption are prosecuted and punished at the earliest and within a reasonable time. Judiciary should not show any leniency on corruption and corrupt people, whether small or large. A message must go that corruption at all cost shall result in severe and deterrent punishment. The booty, loot or benefit, one has earned by indulging in corruption, must be forfeited so that it may become a part of public revenue, and may be utilised for public benefit, instead of allowing it to remain with the corrupt beneficiaries, otherwise, the effectiveness of deterrence shall stand lessened. The law enforcement machinery, i.e., investigators must probe such matters independently, without any interference and should ensure completion of investigation within record time. Everyone who abates, allows to perpetuate by inaction, encourages it and similarly all other persons connected in one or the other way should be dealt with in the same manner as if the corrupt person, and should be punished severely, but with a pace so that others may learn lesson and continue in their memory. It be not allowed to be eroded with passage of time. All this require determination and will, at different level and needs be looked into with real sincerity since time has ripened now.

40. A Public Authority under an obligation of statutory functions, cannot escape of its accountability and responsibility of discharging duties and obligations as per the Statute, in a reasonable manner, in reasonable time and in reasonable way. It is not open to Public Authority to act in a particular matter in a particular way expeditiously and in another similar matter, in a snail pace manner or with undue delay. Such selective function on the part of statutory authority is nothing but sheer arbitrariness and discrimination which infringes fundamental rights enshrined under Article 14 of the Constitution of individual beneficiary public.

41. Though situation is grim, hopes are losing, but, still we have a feeling of improvement and see a ray of hope. We think, our observations will have some impact on all the servants of Public and those working in Statutory bodies and they will now have no hesitation but proceed promptly, effectively and meaningfully so as to catch hold of guilty persons, punish them and cause a lesson to others so as to desist from such activities.

42. Coming back to the present case, inaction on the part of respondents 2 and 3, has compelled petitioner to approach this Court twice. For inaction of respondents 2 and 3, no explanation, what to say satisfactory explanation, has come forth. We were inclined to give opportunity to respondents 2 and 3, if so desires, to file an affidavit giving explanation but officer present in Court as also learned counsel appearing for P.D.A. stated that as a matter of fact, there is no explanation whatsoever and Court may pass appropriate order taking sympathetic view in the matter.

43. Looking to entire facts and circumstances of the case, we dispose of this petition directing respondents 2 and 3 to ensure compliance/ execution of order dated 29.6.2018, without any further delay, provided there is no other impediment.

44. For forcing avoidable litigation upon petitioner twice, we also impose a cost of Rs.25,000/- on respondent 3, which he shall deposit in Allahabad High Court Legal Services Authority within one month.

45. A copy of this order shall be forwarded to Principal Secretary/Additional Chief Secretary, Nagar Vikas, as the case may be, as also Chairman and Vice Chairman of P.D.A. so as to take this judgment into consideration at the time when Annual Confidential Report of respondent 3, Sri Shushil Kumar Chaubey is recorded.

46. The concerned Secretary of Department shall also communicate to all similar Statutory Authorities in the State, the observations made by this Court in this judgment above so as to insist upon them to make it obligatory that statutory duties are performed in words and spirit, expeditiously and within reasonable time, so that public at large for whose benefit such statutory provisions are made, do not suffer and are able to have the benefit of such provisions in a reasonable and effective manner.

47. A compliance report shall be submitted by aforesaid Secretary(s) within three months.

48. Subject to above directions, writ petition is disposed of.

Order Date :- 5.3.2019

Vivek Kr.