Sunita Bhardwaj vs Smt Shiela Dixit And Others
2013 Latest Caselaw 4734 Del

       THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 11.10.2013

+       WP (C) 4870/2012

SUNITA BHARDWAJ                                          ...   Petitioner

                                        versus

SMT SHIELA DIXIT AND OTHERS                              ...     Respondents

Advocates who appeared in this case:
For the Petitioner         : Ms Sunita Bhardwaj-in-person
For the Respondent Nos. 1&3: Ms Zubeda Begum with Ms Sana Ansari and
                             Ms Prachee Satija
For the Respondent No.2    : Mr Rajeeve Mehra, ASG with Mr Neeraj Chaudhary,
                             Mr Aditya Malhotra, Mr Ravjot Singh, Mr Kartikey
                             Mahajan and Mr Amrik Singh
For the Respondent No.4    : Mr Arvind K. Nigam, Sr Advocate with Mr Abhijat
                             and Mr Harsh Hariharan


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE VIBHU BAKHRU

                                  JUDGMENT

BADAR DURREZ AHMED, J

1. The petitioner seeks the issuance of a writ, order or direction in the

nature of certiorari quashing the order dated 11.11.2011 issued by the Under

Secretary, Ministry of Home Affairs, Government of India indicating the

President's decision on the report dated 18.07.2011 of the Lokayukta, National

Capital Territory of Delhi. The petitioner has also sought the issuance of a

writ, order or direction in the nature of mandamus directing the respondent

No.2 to act strictly in accordance with Section 12 of the Delhi Lokayukta and

Uplokayukta Act, 1995 (hereinafter referred to as 'the said Act').

2. The said report of the Lokayukta was the culmination of an inquiry

conducted by him on a complaint (complaint No.C-244/LOK/2009) made by

the petitioner, who has described herself as a practicing advocate in Delhi and

also as a political activist. In the said complaint, the petitioner had alleged that

the respondent No.1, who was the Chief Minister of Delhi, had made a false

representation that 60,000 flats were ready for being handed over to the poor

under the "Rajiv Ratan Awas Yojna" on the eve of the elections in the year

2008. By an order dated 27.11.2009, the Lokayukta directed issuance of notice

to the respondent No.1 for holding an inquiry into the allegations made in the

complaint under Section 7 of the said Act read with Section 2(b) of the said

Act, returnable on 16.12.2009. Thereafter, the response of the respondent

No.1, as also of the respondent No.2, was considered. The relevant record

produced by the Department of Urban Development, Government of NCT of

Delhi, the affidavits filed by various officers of the Department as well as the

written and oral submissions of the complainant and the respondent No.1, were

considered and the inquiry was concluded by the Lokayukta.

3. The inquiry conducted by the Lokayukta culminated in the said report

dated 18.07.2011. The Lokayukta was of the view that the petitioner /

complainant had been able to establish that the respondent No.1 had misused

her position for gain or favour to herself and her political party by

misrepresenting to the public on the issue of allotting / handing over 60,000

flats to the poor and he was further of the view that the respondent No.1 was

actuated, in the discharge of her functions as a public functionary, by improper

motives for her personal and party interest. It was also his view that the

respondent No.1 had acted in a manner which lacked faithfulness as she had

misrepresented to the public, including the voters, by giving misleading and

false information for the purpose of advantage in the ensuing elections. The

Lokayukta also took the view that the respondent No.1 failed to act in

accordance with the norms of integrity and conduct expected of a public

functionary occupying the august chair of the Chief Minister of Delhi.

Consequently, the Lokayukta, by virtue of his report dated 18.07.2011,

recommended to the President of India (respondent No.2 herein), who was the

competent authority under the said Act, to administer a caution to respondent

No.1 to be careful in publication of her messages in future in view of the

present instance.

4. The said report was forwarded to the President on 28.07.2011. The

President's Secretariat sent a letter dated 03.08.2011 to the Home Secretary,

Government of India for examination of and advice on the said Lokayukta's

report dated 18.07.2011. By a communication dated 24.08.2011, the Ministry

of Home Affairs, Government of India asked the Chief Secretary, Government

of NCT of Delhi to send his comments / views alongwith the response of the

respondent No.1 on the report of the Lokayukta dated 18.07.2011. In response

to the said letter dated 24.08.2011, the views of the Government of NCT of

Delhi were communicated to the Ministry of Home Affairs, Government of

India by virtue of a letter dated 28.09.2011. The response of the respondent

No.1 was also communicated under the same communication.

5. This was followed by the decision of the President which was

communicated to the Registrar, Office of Lokayukta, NCT of Delhi by virtue of

the impugned letter dated 11.11.2011 issued by the Under Secretary to the

Government of India, Ministry of Home Affairs. The said letter dated

11.11.2011 is to the following effect:-

"No. U-17020/17/2011-UTL Govt. of India Ministry of Home Affairs, Dated, the 11th November, 2011

To

The Registrar, Office of the Lokayukta, NCT of Delhi G Block, Vikas Bhawan, I.P. Estate, New Delhi

Subject:- Report of the Lokayukta, NCT of Delhi in respect of Chief Minister, Govt. of NCT of Delhi.

Sir,

I am directed to refer to the report dated 18th July, 2011 of the Lokayukta, NCT of Delhi forwarded to the President's Secretariat on 28th July, 2011 in respect of Chief Minister, Govt. of NCT of Delhi and to say that the report of the Lokayukta has been examined carefully. The comments of the Government of NCT of Delhi as well as response of the Chief Minister, Govt. of NCT of Delhi on the report of the Lokayukta were also obtained (copy enclosed) and taken into account while analyzing the report. After weighing the facts and circumstances of the case, it was found that there was no evidence of any malafide intention on the part of the Chief Minister, Government of NCT of Delhi. However, it was observed that the Department of Urban Development, Government of NCT of Delhi was not as careful as it should have been in releasing the brochure relating to construction of houses for weaker sections of the society. Accordingly, the President has decided that the Department of Urban Development, Government of NCT of Delhi may be advised to be more careful in preparing such publications in the future.

Encl:- As above Yours faithfully, Sd/-

(T.Narasimahan) Under Secretary to Govt. of India Tel. 23093147"

6. From the above communication, it is apparent that after receipt of

the Lokayukta's report dated 18.07.2011, comments of the Government

of NCT of Delhi as well as the response of the Chief Minister,

Government of NCT of Delhi on the said report of the Lokayukta were

also obtained and that after the same were considered, it was found that

there was no evidence of any mala fide intention on the part of

respondent No.1. It was, however, noticed that the Department of Urban

Development, Government of NCT of Delhi was not careful enough in

releasing the brochure relating to the construction of houses for the

weaker sections of society and that accordingly, the President had

decided that the Department of Urban Development, Government of NCT

of Delhi be advised to be more careful in preparing such publications in

future.

7. On receipt of the decision of the President, the Lokayukta, not

being satisfied with the "action" taken by the President, felt that this was

a fit case for making a Special Report upon the case to the Lt. Governor

and also to inform the complainant concerned. Consequently, the

Lokayukta prepared a Special Report dated 20.03.2012. In the said

Special Report, it was observed by the Lokayukta as under:-

"35. In these circumstances, it would appear that the Hon'ble President was not properly advised with regard to the factual position and the admitted position and role of the Respondent which led to advice of caution being given to the Department of Urban Development instead of the Respondent for her message. It was neither the case of the

Complainant nor the Respondent that there was any negligence on the part of the Urban Development Department or its Officers. The Respondent had duly owned her message and had not claimed that the Department was responsible for this. She had rather justified the message.

It is, therefore, prayed that this matter may be sent, in the first instance, to the Hon'ble President for reconsideration and administration of caution to the Respondent as originally recommended, failing which, it be placed before the Assembly under Sub-Section (6) of Section 12 of the Act."

8. On the same date, that is, on 20.03.2012, the substance of the case

was also made available by the Lokayukta on the official website of the

Lokayukta. Thereafter, the said Special Report alongwith an action taken

report was laid before the Legislative Assembly by the Chief Minister of

Delhi on 11.12.2012.

9. It was contended by the petitioner / complainant that the decision

of the President communicated by the impugned letter dated 11.11.2011

was open to judicial review and ought to be quashed inasmuch as the

President, being the competent authority, had not called for the response

of the complainant or the views of the Lokayukta and that the President

had only obtained the comments of the Government of NCT of Delhi and

the respondent No.1. It was also contended that Section 12(2) of the said

Act does not require or envisage another hearing or round of hearing

before the competent authority (the President of India in this case). It was

also contended that while the competent authority has indicted the

Department of Urban Development, Government of NCT of Delhi, it

must be noted that the Lokayukta does not have any jurisdiction over

Government servants and his jurisdiction only extends to public

functionaries as defined in Section 2(m) of the said Act and, therefore, the

direction given to the Department of Urban Development, NCT of Delhi

to be more careful in preparing publications in the future was of no

consequence and, in any event, beyond the scope of the said Act. It was

also contended that the recommendation of the Lokayukta given in his

report dated 18.07.2011 ought to have been endorsed by the competent

authority (President of India).

10. We may point out that in this case, a predecessor Bench had also

directed notice to be issued to the respondent No.4 (the Lokayukta), by

virtue of the order dated 13.02.2013, to place on record his stand.

Thereafter, an affidavit dated 08.04.2013 of Sh. A.K. Kuhar, DHJS,

Officer on Special Duty in the office of the Lokayukta, Delhi was filed.

And, Mr Arvind Nigam, senior advocate, appeared on behalf of the

respondent No.4 and had made his submissions expounding the stand and

views of the Lokayukta. In sum and substance, the learned counsel for

the respondent No.4 supported the stand taken by the petitioner /

complainant. It was also contended that the President had adopted a

"faulty procedure" while considering and processing the

recommendations made by the Lokayukta and that because of this, the

functioning of the institution of the Lokayukta and its efficacy was

adversely impacted. It was submitted that the Lokayukta, in adherence

with the principles of natural justice, carries out a comprehensive inquiry

with full opportunity being provided to the parties to set forth their

respective cases. Where the allegations are found to be established

against the public functionary, the Lokayukta submits a report to the

competent authority alongwith the pleadings, evidence, submissions and

other material produced during the inquiry. Mr Nigam submitted that in

terms of the mandate of Section 12 (2) of the said Act, the competent

authority is required to examine the 'report' forwarded to and to intimate

the Lokayukta, within a period of three months, as to the 'action' taken or

proposed to be taken on the basis of the report. According to the learned

counsel, the said Act does not contemplate or provide for any further

hearing or proceedings in the nature of hearing by the competent

authority, other than the one conducted by the Lokayukta. In the context

of the present case, it was contended by the learned counsel for the

respondent No.4 that there was no occasion for the competent authority

(the President) to have called for the comments of the Government of

NCT of Delhi as well as the response of the respondent No.1 on the

report of the Lokayukta. It was submitted that the expressions used in

Section 12(2) of the said Act to the effect "examine the report" and "on

the basis of the report", were significant and these expressions limited the

scope of consideration by the competent authority. It was contended that

the statute does not permit the conduct of a supplementary inquiry or the

calling for responses or comments of the public functionary or the

Government when their detailed responses / submissions are already

available with the report submitted by the Lokayukta. With reference to

paragraph 17 of the affidavit on behalf of the respondent No.4

(Lokayukta) and the Supreme Court decision in Institution of A.P.

Lokayukta / Upa-Lokayukta v. T. Rama Subha Reddy: 1997 (9) SCC 42

(at p.53), it was contended that the recommendations of the Lokayukta

not being accepted as a result of the 'flawed procedure' having been

adopted makes the report of the Lokayukta "a paper direction and the

Lokayukta a paper tiger without having any claws".

11. On behalf of respondent Nos. 1 and 3, it was contended by Ms

Zubeda Begum that the President dealt with the report of the Lokayukta

in accordance with the requirements of law. The comments of the

respondent Nos. 1 and 3 on the report of the Lokayukta were called for by

the President and there was nothing wrong with this. The procedure

adopted by the President was not faulty and, in fact, was in consonance

with the principles of natural justice. Mr Rajeeve Mehra, the learned

Additional Solicitor General, appearing on behalf of the respondent No.2

(the competent authority) submitted that the decision of the competent

authority / President is not justiciable. He also submitted that as required

under Section 12(2) of the said Act, the President considered the report of

the Lokayukta and applied her mind to the same as also to the comments

thereon of the respondents 1 and 3 and took the decision. It is not at all

necessary that the competent authority must agree with the findings and /

or the recommendations of the Lokayukta. And, before the competent

authority takes or proposes to take any action against a public

functionary, the competent authority is not barred from seeking the

comments / response of the public functionary.

12. On behalf of the respondents (other than respondent No.4), it was

further contended that the present writ petition is not maintainable, in any

event, inasmuch as a special procedure has been laid out in the Act itself

in the event the Lokayukta is not satisfied with the action taken or

proposed to be taken by the competent authority. That procedure is

provided in Section 12(3) whereunder the Lokayukta may make a Special

Report upon the case to the Lt. Governor. In case such a Special Report

is made and it contains any adverse comment against any public

functionary, the special report, by virtue of Section 12(5) of the said Act,

is required to also contain the substance of the defence adduced by such

public functionary and the comments made thereon by or on behalf of the

Government or the public authority concerned, as the case may be.

Furthermore, by virtue of Section 12(6), on receipt of such a Special

Report, the Lt. Governor is required to cause a copy thereof together with

an explanatory memo to be laid before the Legislative Assembly. It was

submitted on behalf of the respondents (other than respondent No.4) that

in the present case, the Lokayukta was evidently not satisfied with the

action taken by the competent authority (President) and, therefore, he

made a Special Report on 20.03.2012 which was sent to the Lt. Governor

and, thereafter, the same has been laid before the Legislative Assembly

on 11.12.2012. The remedy in respect of dissatisfaction with the action

taken by the competent authority has, therefore, been specifically

provided and has also been availed of. Thus, there is no occasion for this

court to entertain the writ petition in respect of the 'action' taken by the

competent authority, as indicated in the impugned letter dated

11.11.2011.

13. It was also contended by the respondents (other than respondent

No.4) that once the Lokayukta's report is received by the competent

authority, there is no bar under the Act on the competent authority calling

for the views from the public functionary or the concerned Government

on the said report of the Lokayukta. It was also contended that this was

within the parameters of natural justice and that before any action is taken

by the competent authority, against or in respect of a public functionary,

the said public functionary ought to be given an opportunity of

commenting on the report of the Lokayukta. It was also contended that,

at that stage, it was not at all necessary to call for the views of the

complainant or the Lokayukta because the action proposed is against the

public functionary.

14. At this stage, it would be appropriate if the relevant provisions of

the said Act are considered. Section 2(a) of the said Act defines "action"

to mean action by way of prosecution or otherwise taken on the report of

the Lokayukta or the Upalokayukta and includes "failure to act". Section

2(b) of the said Act, which defines "allegation", reads as under:-

"2. Definitions: In this Act, unless the context otherwise requires:-

                 a.      xxxxx           xxxxx        xxxxx       xxxxx

                 b.      "allegation" in relation to a public functionary

means by affirmation that such public functionary in capacity as such:-

i. has failed to act in accordance with the norms of integrity and conduct which ought to be followed by the public functionaries or the class to which he belongs;

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 in the discharge of his functions as such public functionary by improper or 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 whether such pecuniary resources or property are held by the public

functionary personally or by any member of his family or by some other person on his behalf;

Explanation - For the purpose of this sub-clause "family" means husband, wife, sons and unmarried daughters living jointly with him;"

15. Section 2(d) defines "competent authority" in relation to a public

functionary to mean, in the case of a Chief Minister and Minister, the

President. The definition of "public functionary" given in Section 2(m)

of the said Act, inter alia, means the "Chief Minister". By virtue of

Section 7(a), the Lokayukta is empowered to proceed to inquire into an

"allegation" made against the public functionary in relation to whom

either the President or the Lt. Governor is the competent authority.

Section 9 of the said Act makes provisions relating to complaints.

Section 10 provides that the Lokayukta or the 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. Section 11 stipulates that the provisions of the Evidence Act,

1872 and the Code of Criminal Procedure, 1973 shall, as nearly as may

be, apply to the procedure of inquiry before the Lokayukta in the

specified matters, such as summoning and enforcing the attendance of

any person and his examination on oath, etc. The said provision also

stipulates that the proceeding before the Lokayukta shall be deemed to be

a judicial proceeding within the meaning of Sections 193 and 228 of the

Indian Penal Code, 1860. Furthermore, the Lokayukta or the

Upalokayukta shall be deemed to be a civil court for the purposes of

Section 195 and Chapter XVI of the Code of Criminal Procedure, 1973.

16. We now come to the all important Section 12 of the said Act which

reads as under:-

"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.

(4) The Lokayukta and the Upalokayukta shall present annually a consolidated report on the performance of their functions under this Act, to the Lieutenant Governor.

(5) If in any special report under sub-section (3) or the annual report under sub-section (4) any adverse comment is made against any public functionary, such report shall also contain the substance of the defence adduced by such public functionary and the comments made thereon by or on behalf of the Government or the public authority concerned, as the case may be.

(6) On receipt of a special report under sub-section (3), or the annual report under sub-section (4), the Lieutenant Governor shall cause a copy thereof together with an explanatory memorandum to be laid before Legislative Assembly.

(7) Subject to the provisions of section 10, the Lokayukta may at his discretion make available from time to time, the substance of cases closed or otherwise disposed of by him, or by an Upalokayukta, which may appear to him to be of general public, academic or professional interest, in such manner and to such persons as he may deem appropriate."

17. We may also notice the provisions of Section 18 of the said Act

which reads as under:-

"18. Provision of this Act to be in addition to any other law for the time being in force - The provisions of this Act shall be in addition to the provisions of any other enactment or any rule or law under which any remedy by way of appeal, revision, review or in any other manner is available to a person making a complaint under this Act in respect of any action, and nothing in this Act shall limit or affect the right of such person to avail of such remedy."

18. From the above, it is evident that, if, upon a complaint, the

Lokayukta embarks upon an inquiry into the allegations made in the

complaint, the exact procedure to be adopted by the Lokayukta would be

within the domain of the Lokayukta provided it is ensured that the

principles of natural justice are satisfied. In other words, insofar as the

Lokayukta is concerned, he is enjoined by the said Act to ensure that his

inquiry falls within the parameters of natural justice. As indicated above,

Section 12(1) stipulates that if the Lokayukta is satisfied after an inquiry

into the allegations that such allegation or allegations are established, he

is required to communicate his findings and recommendations by a report

in writing alongwith the relevant documents, materials and other evidence

to the competent authority. In other words, the function of the Lokayukta

is to inquire into the allegations made by the complainant. In doing so,

the Lokayukta has to abide by the principles of natural justice. The

Lokayukta does not himself take any decision with regard to the action to

be taken on the basis of the report. That decision has to be taken by the

competent authority under Section 12(2) of the said Act. Therefore, the

Lokayukta's jurisdiction extends to the conducting of an inquiry and

thereupon arriving at the findings and in the making of recommendations.

In Chandrashekaraiah v. Janekere C. Krishna: 2013 (3) SCC 117, the

Supreme Court (Per K.S.P. Radhakrishnan, J), while considering the

position under the Karnataka Lokayukta Act, 1984 and, in particular,

Section 12 thereof, which is more or less similar to Section 12 of the

Delhi Act, observed as under:-

"Functions of the Lokayukta/Upa-Lokayukta-Investigative in nature

32. The provisions discussed above clearly indicate that the functions to be discharged by the Lokayukta or Upa- Lokayukta are investigative in nature and the report of Lokayukta or Upa-Lokayukta under sub-sections (1) and (3) of Section 12 and the special report submitted under sub- section (5) of Section 12 are only recommendatory. No civil consequence as such follows from the action of the Lokayukta and Upa-Lokayukta, though they can initiate prosecution before a competent court. I have extensively referred to the object and purpose of the Act and explained the various provisions of the Act only to indicate the nature and functions to be discharged by Lokayukta or Upa-Lokayukta under the Act."

xxxxx xxxxx xxxxx xxxxx xxxxx

"37. The Lokayukta and Upa-Lokayukta while exercising powers under the Act, of course, is acting as a quasi-judicial authority but his functions are investigative in nature. The Constitution Bench of this Court in Nagendra Nath Bora v. Commr. of Hills Division and Appeals [AIR 1958 SC 398] held: (AIR p. 408, para 14) "14. ... Whether or not an administrative body or authority functions as a purely administrative one or in a quasi-judicial capacity, must be determined in each case, on an examination of the relevant statute and the rules framed thereunder."

38. This Court in Indian National Congress (I) v. Institute of Social Welfare [(2002) 5 SCC 685] , while dealing with the powers of the Election Commission of India under the Representation of the People Act, 1951, held that while exercising power under Section 29-A, the Commission acts quasi-judicially and passes quasi-judicial orders. The Court held that: (SCC p. 700, para 27)

"27. What distinguishes an administrative act from a quasi-judicial act is, in the case of quasi-judicial functions under the relevant law the statutory authority is required to act judicially. In other words, where law requires that an authority before arriving at a decision must make an enquiry, such a requirement of law makes the authority a quasi- judicial authority."

Noticing the above legal principles this Court held in view of the requirement of law that the Commission is to give decision only after making an enquiry, wherein an opportunity of hearing is to be given to the representative of the political party, the Election Commission is required to act judicially."

xxxxx xxxxx xxxxx xxxxx xxxxx

"40. The provisions of Sections 9, 10 and 11 clearly indicate that the Lokayukta and Upa-Lokayukta are discharging quasi- judicial functions while conducting the investigation under the Act. Sub-section (2) of Section 11 of the Act also states that for the purpose of any such investigation, including the preliminary inquiry the Lokayukta and Upa-Lokayukta shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908, in the matter of summoning and enforcing the attendance of any person and examining him on oath. Further they have also the power for requiring the discovery and production of any document, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or office, issuing commissions for examination of witnesses or documents, etc. Further, sub-section (3) of Section 11 stipulates that any proceedings before the Lokayukta and Upa-Lokayukta shall be deemed to be a judicial proceeding within the meaning of Section 193 of the Penal Code. Therefore, the Lokayukta and Upa-Lokayukta, while investigating the matters are discharging quasi-judicial functions, though the nature of functions is investigative."

(Underlining added)

19. In the very same decision, Justice Madan B. Lokur, concurring, had

observed as under:

"107. The broad spectrum of functions, powers, duties and responsibilities of the Upa-Lokayukta, as statutorily prescribed, clearly bring out that not only does he perform quasi-judicial functions, as contrasted with purely administrative or executive functions, but that the Upa- Lokayukta is more than an investigator or an enquiry officer. At the same time, notwithstanding his status, he is not placed on the pedestal of a judicial authority rendering a binding decision. He is placed somewhere in between an investigator and a judicial authority, having the elements of both. For want of a better expression, the office of an Upa-

Lokayukta can only be described as a sui generis quasi- judicial authority.

108. The learned counsel for the State referred to Bharat Bank Ltd. v. Employees [AIR 1950 SC 188 : 1950 SCR 459] to highlight the difference between a court and a tribunal. It is not necessary to go into this issue because the question is not whether the Upa-Lokayukta is a court or a tribunal -- the question is whether he is a quasi-judicial authority or an administrative authority. To this extent, the decision of the Constitution Bench does not add to an understanding of the issue under consideration. However, the decision does indicate that an Upa-Lokayukta is certainly not a court. He does not adjudicate a lis nor does he render a "judicial decision" derived from the judicial powers of the State. An Upa-Lokayukta is also not a tribunal, although he may have the procedural trappings (as it were) of a tribunal. The final decision rendered by the Upa-Lokayukta, called a report, may not bear the stamp of a judicial decision, as would that of a court or, to a lesser extent, a tribunal, but in formulating the report, he is required to consider the point of view of the person complained against and ensure that the investigation reaches its logical conclusion, one way or the other, without any interference and without any fear. Notwithstanding this, the report of the Upa-Lokayukta does not determine the rights of the complainant or the person complained against. Consequently, the Upa-Lokayukta is neither a court nor a tribunal. Therefore, in my opinion, the Upa-Lokayukta can best be described as a sui generis quasi-judicial authority."

(Underlining added)

20. It is, therefore, clear that the Lokayukta can best be described as a

sui generis quasi-judicial authority and that, although the Lokayukta is

more than an investigator or an inquiry officer, at the same time, he is not

placed on the pedestal of a judicial authority rendering a binding decision.

In other words, the Lokayukta, while investigating the matters before him

in the course of conduct of an inquiry into the allegations, discharges a

quasi-judicial function, although the nature of the function is

investigative.

21. The competent authority, by virtue of Section 12(2) of the said Act

is required to examine the report forwarded to it under Section 12(1) and

to indicate within three months of the date of receipt of the report, to the

Lokayukta, the "action" taken or proposed to be taken on the basis of the

report. It is clear that while the Lokayukta conducts the inquiry and

investigates the matter, he does not have the power to take any action.

That power is with the competent authority. The question that arises is -

does the competent authority act quasi-judicially in exercising this

power?

22. There are two sets of cases where an authority is required to act

judicially. The first set of cases is where there are disputing parties and

the authority has to adjudicate the lis between them. The second set of

cases is where there are no disputing parties as such, but the authority

concerned is to sit in judgment. As observed in Associated Companies

Limited v. P.N. Sharma: AIR 1965 SC 1595, if a statute empowers an

authority, not being a court in the ordinary sense, to decide the disputes

arising out of a claim made by one party under the statute which claim is

opposed by another party and to determine the respective rights of the

contesting parties, who are opposed to each other, there is a lis and, prima

facie, in the absence of anything in the statute to the contrary, it is the

duty of the authority to act judicially and the decision of the authority is

the result of a quasi-judicial act. Where, however, a statutory authority

has power to do any act, which will prejudicially affect the subject, then,

although there are no two parties apart from the authority and the

'contest' is between the authority proposing to do an act and the subject

opposing it, the final determination of the authority will yet be a quasi-

judicial act provided the authority is required by the statute to act

judicially.

23. In the present case, we find that while the inquiry is to be

conducted by the Lokayukta, the decision is to be taken by the competent

authority. There is no doubt that the entire process of inquiry and

decision making is quasi-judicial in nature. While the Lokayukta has to

act quasi-judicially and has to observe the principles of natural justice as

specifically enjoined by Section 10 of the said Act, the principles of

natural justice would also be applicable to the decision making process of

the competent authority. However, the scenario before the competent

authority is different. While before the Lokayukta, the complainant and

the public functionary are, in a sense, pitted against each other because of

the rival stands that they take, before the competent authority, it is only

the report of the Lokayukta alongwith the ancillary documents and the

public functionary against whom action is to be taken by the competent

authority.

24. In this backdrop, it would be apposite to refer to certain

observations of a Constitution Bench of the Supreme Court in the case of

ECIL v. B. Karunakar: 1993 (4) SCC 727 which was dealing with

disciplinary proceedings and the provisions of Article 311 of the

Constitution. While we have observed that the Lokayukta is something

more than an inquiry officer, it is evident that the role of competent

authority under the said Act is somewhat akin to that of a disciplinary

authority. In the context of whether a delinquent employee has a right to

represent against the report of the inquiry officer, the Constitution Bench

observed as under:-

"26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at

its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it."

(Underlining added)

25. An analogy can be drawn from the above. The report of the

Lokayukta does not merely contain the relevant documents, materials and

evidence collected by the Lokayukta during the course of inquiry

conducted by the Lokayukta under the said Act. It also contains the

findings of the Lokayukta. It is also true that the competent authority is

not bound by the findings and / or the recommendations of the

Lokayukta. It is well within the powers of the competent authority to

reject the findings and recommendations. But, the findings and

recommendations of the Lokayukta do constitute additional material

before the competent authority of which the concerned public functionary

has no knowledge. If such additional material, unknown to the public

functionary, is to be taken into consideration by the competent authority,

while taking action or proposing to take action, it is imperative under the

principles of natural justice that before the competent authority takes such

a decision, the public functionary is given an opportunity to respond and

comment upon the Lokayukta's findings and recommendations.

26. From the above discussion, it is evident that the course adopted in

the present case is in consonance with the principles of natural justice and

the procedure followed by the competent authority cannot be regarded as

'faulty'. We have noticed that after the Lokayukta forwarded his report

to the President, comments were sought from the Government of NCT of

Delhi as also the respondent No.1. Based on a consideration of the

Lokayukta's report alongwith the documents, materials and evidence

collected by the Lokayukta and the comments and responses received on

the said report from the Government of NCT of Delhi and the respondent

No.1 (the public functionary in the present case), the competent authority

came to the conclusion that there was no evidence of any mala fide

intention on the part of the respondent No.1 and, therefore, no action was

taken or proposed to be taken by the competent authority insofar as the

respondent No.1 is concerned.

27. We entirely agree with the submissions made by the learned

counsel for the respondents (other than respondent No.4) that it was well

within the powers of the competent authority to call for the views of the

respondent No.1 on the report of the Lokayukta before the competent

authority took any action in the matter. First of all, there is no bar in the

Act against such a course of action. Secondly, and more importantly, it is

the requirement of natural justice, which is inbuilt in the decision making

process of the competent authority that a response on the findings of the

Lokayukta be obtained from the concerned public functionary. We may

also point out that it was not at all necessary for obtaining or calling for

the response of the complainant or the views of the Lokayukta. The

complainant's stand had been examined by the Lokayukta and that had

culminated in the report of the Lokayukta, which contained the findings

and recommendations of the Lokayukta. Therefore, nothing further was

required from the complainant or the Lokayukta and it is only the grant of

an opportunity to the concerned public functionary to respond to the

findings of the Lokayukta that was necessary for fulfilling the

requirements of natural justice.

28. Though the nature of the functions of the Lokayukta is essentially

investigative, he is more than an investigator. This is amply

demonstrated by the fact that the competent authority has to intimate the

Lokayukta, the 'action' taken or proposed to be taken. The matter once

again falls within the domain of the Lokayukta. If no intimation is

received by the Lokayukta within three months of the date of receipt of

the report by the competent authority, the Lokayukta can proceed under

Section 12(3) of the said Act. Where intimation is received by the

Lokayukta and he is satisfied with the action taken or proposed to be

taken by the competent authority, he shall close the case with information

to the complainant, the public functionary and competent authority.

However, in any other case, which includes the case where the Lokayukta

is not satisfied with the action (which includes 'failure to act') or the

proposed action, he may, if he considers that the case so deserves, make a

special report upon the case to the Lt. Governor and also inform the

complainant. He cannot request the competent authority to re-examine or

re-consider the case. There is no provision for such a 'review' in the said

Act.

29. In these circumstances, the Lokayukta could not have 'prayed' in

his Special Report of 20.03.2012 to the Lt. Governor that the matter be

sent (in the first instance) to the President for reconsideration. There is

no provision in the said Act for such a course of action. On the contrary,

as pointed out above, when the Lokayukta is dissatisfied with the course

of action (which includes inaction) taken or proposed by the competent

authority, the procedure to be adopted by the Lokayukta is specifically

provided in the said Act itself. That 'remedy' or procedure is of making a

Special Report to the Lt. Governor under Section 12(3) of the said Act in

the manner indicated in Section 12(5) thereof. Thereafter, the Special

Report has to be placed before the Legislative Assembly in terms of

Section 12(6) of the said Act. In the present case, the Lokayukta was

dissatisfied with the "action" taken by the President (the competent

authority) and, therefore, he thought it fit to make a Special Report. That

Special Report was made on 20.03.2012 and the same was forwarded to

the Lt. Governor. As indicated above, the said Special Report has also

been laid before the Legislative Assembly on 11.12.2012. Therefore,

compliance with the provisions of the said Act, insofar as the complaint

in question is concerned is complete. No further action is contemplated

under the said Act by the Lokayukta or the Competent Authority. Once

the matter is placed before the Legislative Assembly, it falls within the

arena of the legislators, who eventually are representatives of the people.

30. This being a petition seeking a writ of certiorari quashing the

decision of the competent authority, it cannot be allowed simply on the

ground that the decision is wrong. We are not sitting in appeal over the

decision. It must be shown before such a writ is issued that the

competent authority acted without jurisdiction or in excess of it or in

violation of the principles of natural justice (see: Ebrahim Aboobakar v.

Custodian General of Evacuee Property: AIR 1952 SC 319

[constitution bench]. In the present case, the competent authority had the

jurisdiction to take the decision on the report of the Lokayukta and in

doing so she neither exceeded her jurisdiction nor violated the principles

of natural justice.

31. Lastly, the lament of the Lokayukta that the institution of the

Lokayukta should not be reduced to being a mere paper tiger needs to be

addressed. This anguish of the Lokayukta in this case is predicated on the

premise that the competent authority followed a faulty procedure. We

have already repelled this premise. Therefore, at least, in this case, this

issue is not a cause for concern. Insofar as the general observations of the

Lokayukta based on the observations of the Supreme Court in T. Rama

Subha Reddy (supra) are concerned, the way out has been suggested by

the Supreme Court in that very decision in the following words:-

"... it would be more appropriate for the legislature itself to make a clear provision for due compliance with the report of the Lokayukta or Upa-lokayukta so that the public confidence in the working of the system does not get eroded and these institutions can effectively justify their creation under the statute."

A caveat must also be entered and that is that the above Supreme Court

decision was considering the provisions of the Andhra Pradesh

Lokayukta and Upa-Lokayukta Act 1983, the provisions of which are

somewhat different from those of the Delhi Act.

32. In these circumstances and for the foregoing reasons, there is no

merit in this writ petition and the same is dismissed.

BADAR DURREZ AHMED, J

VIBHU BAKHRU, J

OCTOBER 11, 2013 dutt