Kamran Siddique vs Union Of India & Ors.
2014 Latest Caselaw 4851 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of decision: 26th September, 2014
+              W.P.(C) No.6037/2014 & CM No.14713/2014 (for stay).

       KAMRAN SIDDIQUE                                             ..... Petitioner
                   Through:           Mr. Kamran Malik, Adv.
                                     Versus
       UNION OF INDIA & ORS.                               ..... Respondents
                    Through:            Mr. Sanjay Jain, ASG with Mr. R.D.
                                        Bhardwaj, Mr. Rahul Jain, Advs. for
                                        UOI.
                                        Mr. Hashmat Nabi, Adv. for R-4 / Delhi
                                        WAQF Board.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This petition under Article 226 of the Constitution of India, filed as a

Public Interest Litigation, avers that the respondent no.5 Shri Asif Mohd.

Khan, Member of the Legislative Assembly of Delhi from the Okhla

Constituency is misusing public funds of Rs.2.8 crores belonging to the MLA-

Local Area Development Fund, for beautification of graveyard in / at Batla

House as luxury project by demolishing the existing boundary wall thereof

(which was not in need of any repair or reconstruction) and in rebuilding the

same. It is further the averment that though the sewer lines, roads, streets in the

said Constituency are in a poor condition, resulting in water logging, and

though there are no government dispensaries, public toilets in the locality and

the primary schools existing have very poor infrastructure but instead of using

the public monies on the same, they are being wasted as aforesaid. Averments

are also made of a nexus between the respondent no.5 MLA and the

contractors, of receiving kickbacks from the contractors engaged to do the

aforesaid work which will benefit none of the residents of the Constituency.

2. It is further the case in the petition that the respondent no.5 MLA has

also indulged in encroachment over public land and inquiries in that regard

pending before the Lokayukta, Delhi are held up owing to there being a

vacancy since 5th November, 2013 in the Office of the Lokayukta, Delhi. Other

complaints against the respondent no.5 MLA are also stated to be pending at

final stage in the Office of the Lokayukta, Delhi.

3. Reliefs of (i) restraining the misuse of the said funds; (ii) direction for

Court monitored investigation by Special Investigation Team or the CBI into

misuse of public funds and abuse and misuse of power by public functionaries

and the contractors; (iii) direction for extension of the term of the last holder of

the Office of the Lokayukta, Delhi till the formation of new Government of

NCT of Delhi; and, (iv) a direction to the Union of India and Govt. of NCT of

Delhi for allotting land for graveyard in Shaheen Bagh, Okhla, are claimed.

4. The petition had come up first before this Court on 10 th September, 2014

when we had asked the learned ASG appearing on advance notice to obtain

instructions on the aspect of filling up of the vacancy in the Office of the

Lokayukta, Delhi.

5. The learned ASG on 17th September, 2014 contended that as per Section

5 of the Delhi Lokayukta and Upalokayukta Act, 1995 a person appointed as a

Lokayukta can hold office for a term of five years only and is not eligible for

re-appointment thereafter and has vide sub-Section (6) of Section 5 been

expressly made ineligible for further appointment as Lokayukta. He has further

drawn our attention to Section 3 of the said Act which provides for the

appointment of the Lokayukta by the Lt. Governor, with the prior approval of

the President and after consultation with the Chief Justice of the High Court of

Delhi and the Leader of Opposition in the Legislative Assembly and if there be

no such leader, a person selected in this behalf by the Members of the

Opposition in that House in such manner as the Speaker may direct. He has

contended that owing to the status of the Delhi Legislative Assembly, there is

difficulty in appointment of the Lokayukta.

6. We may notice that sub-Section (5) of Section 5 of the said Act requires

a vacancy in the Office of the Lokayukta to be filled up "as soon as possible

but not later than six months from the date of occurrence of such vacancy".

Here, what to talk of six months, more than ten months have already elapsed

since the date of the Office of the Lokayukta, Delhi having fallen vacant. The

legislative mandate, of the vacancy in the said office being filled up "not later

than six months" is clearly being violated.

7. Though, owing to none of the contesting political parties getting the

requisite majority in the elections to the Legislative Assembly of Delhi held in

December, 2013, there undoubtedly is a hiatus in the Legislative Assembly of

Delhi with there being no government and no opposition and though the

Supreme Court in State of Gujarat Vs. Hon'ble Mr. Justice R.A. Mehta

(Retd.) (2013) 3 SCC 1 has held that the Governor in the matter of appointment

of Lokayukta must act in accordance with the aid and advice tendered to him

by the Council of Ministers but we are still of the view that the Office of the

Lokayukta cannot be so kept vacant and the said circumstances also do not

justify the legislative mandate contained in Section 5(5) to be subverted and

defeated. The statutory provisions make it mandatory on the part of the State

to ensure that the Office of the Lokayukta is filled up without any delay.

8. The Office of the Lokayukta is very significant for the people of the

State, as it provides for a mechanism through which the people of the State can

get their grievances heard and redressed against maladministration; in a State

where society suffers from moral denigration and simultaneously from rampant

corruption, there must be an effective forum to check the same (Ref. Justice

R.A. Mehta supra). The prevalent scenario, has resulted in a situation where

though there is a Legislative Assembly and its Members, but the Office of

Lokayukta which was meant to be a watchdog inter alia over them, being non-

functional and / or having ceased to exist and which situation cannot be

permitted, at least by this Court, to prevail for long. Today, the citizens of

Delhi though have their elected representatives in office in the form of

Members of Legislative Assembly of Delhi and who continue to enjoy the

perks and benefits of their office, as is evident from their also availing of the

Local Area Development Scheme Funds but owing to the said MLAs failing to

form a Government, the Office of the Lokayukta, constituted to inquire into

allegations against them, remains vacant. The Supreme Court recently in

K. Saravanan Karuppasamy Vs. State of Tamil Nadu 2014 SCC Online SC

716, though in relation to the Office of the Chairperson of the State Human

Rights Commission, has held that having regard to the benevolent provisions of

the Protection of Human Rights Act, 1993 and the effective mechanism for

redressal of grievances of citizens against human rights violations provided

therein, the Office of the Chairperson cannot be allowed to remain vacant for a

long time.

9. The situation however, we find, is not irremediable. The Supreme Court

in Justice R.A. Mehta (Retd.) (supra) itself has held that an exception to the

rule, of the Governor in the matter of appointment of Lokayukta acting in

accordance with the aid and advice of the Council of Ministers, will have to be

made when there is no Council of Ministers in existence or the Legislative

Assembly stands dissolved or suspended. Referring to Article 163(2) of the

Constitution, it was held that it would be permissible for the Governor to act

without ministerial advice in certain situations depending upon the

circumstances, even though they may not specifically be mentioned in the

Constitution as discretionary functions; there may be circumstances where

ministerial advice is not available at all; moreover vide Article 163(2), the

Governor himself is the final authority to decide upon the issue whether he is

required by or under the Constitution to act in his discretion. It was yet further

held that the Governor is called upon to act upon his own discretion where the

Council of Ministers, because of some incapacity or other situation, is

disentitled from giving advice or in the case of complete breakdown of

democracy or where one Ministry has resigned and the other alternative

Ministry cannot be formed.

10. The Supreme Court in Mr. Justice Chandrashekaraiah (Retd.) Vs.

Janekere C. Krishna (2013) 3 SCC 117 has also held that though the

Executive is responsible for appointment of the Lokayukta but the same does

not preclude the Chief Justice from initiating the appointment process,

particularly in the event of the failure of the Executive to take necessary steps.

Therefrom also, we draw strength to observe that Hon'ble the Lt. Governor,

Delhi, even without the aid and advice of the Council of Ministers would be

entitled in the present situation to proceed with the filling up of the vacancy in

the Office of the Lokayukta, Delhi.

11. The aforesaid principles, though pronounced by the Supreme Court in

relation to the Gujarat Lokayukta Act, 1986 and Karnataka Lokayukta Act,

1984, in our opinion apply squarely to the situation which has developed in

Delhi. It cannot also be lost sight of that Delhi, as distinct from the States of

Gujarat and Karnataka to which the judgments aforesaid pertain, enjoys a

special status under Article 239AA of the Constitution of India and the Lt.

Governor, Delhi enjoys certain special powers as noticed by a Division Bench

of this Court as far back as in Om Prakash Pahwa Vs. State of Delhi 75

(1998) DLT 3.

12. The doctrine of necessity, as invoked by the Supreme Court in State of

Maharashtra Vs. Ramdas Shrinivas Nayak (1982) 2 SCC 463, reiterated in

Madhya Pradesh Special Police Establishment Vs. State of M.P. (2004) 8

SCC 788, though in the context of grant of sanction for prosecution under the

Prevention of Corruption Act, 1947, to hold that the advice of the Council of

Ministers can be dispensed with, can also be beneficially applied in the present

scenario to enable Hon'ble the Lt. Governor, Delhi to fill up the vacancy in the

Office of the Lokayukta, Delhi.

13. We therefore request the Lt. Governor, Delhi to forthwith initiate the

process of filling up of the vacancy in the Office of the Lokayukta, Delhi.

14. As far as the other grievance is concerned, the petitioner himself along

with the petition has filed the "Guidelines for Member of Legislative Assembly

Local Area Development Scheme" as available on the website of the Govt. of

NCT of Delhi and a perusal whereof reveals:-

(i) that the MLAs are required to recommend the work to be carried

out in their constituencies;

(ii) the said work is to conform to the general pattern of programmes

and projects being implemented by the local bodies / departments

of Govt. of NCT of Delhi;

(iii) such works are to be sanctioned and implemented in the same

manner as the other works of those bodies are being sanctioned

and implemented;

(iv) technical and administrative sanction for the works for which the

MLAs have exercised their choice is to be given after following

the normal departmental procedures applicable to the local bodies

and other Government Departments;

(v) parameters laid down of the works which can be carried out under

the said scheme and the non-permissible works have also been

specified;

(vi) the MLAs while recommending any work are required to also

submit detailed cost estimate thereof to be prepared as per Delhi

Schedule of Rates-2012 (DSR-2012) as adopted by GNCTD vide

Pr. Secretary(Finance) Order No.8/2/2007-A/CD-01295543/2012-

13/Exp-4/854-73 dated 12th September, 2012;

(vii) the funds are to be released and placed at the disposal of the

executing agency on the basis of the said information;

(viii) the implementing agencies / departments are to utilize the funds in

accordance with CPWD Manual and the General Financial Rules;

and,

(ix) there is an obligation to ensure that the works to be executed

should have a public purpose and not a private purpose.

15. It is thus not as if the funds under the scheme are disbursed to the MLA

or that the MLA has an absolute discretion in the matter. The spending of the

said funds on works, though recommended by the MLA, has been made subject

to the same checks and balances as applicable to any other government work.

16. As far as the contention of the petitioner, of the works recommended by

the respondent no.5 MLA being not needed and not in public interest and the

area/constituency being in need of other works, there will always be a

difference of opinion / perception. However the scheme and to which there is

no challenge having vested the choice, of which work is to be carried out, in

the MLA who is the elected representative of the residents of the area /

constituency, this Court cannot lightly interfere in the same.

17. As far as the contention of the petitioner, of a nexus between the MLAs

and the contractors and the MLAs receiving kickbacks from the contractors, is

concerned, the petitioner claims to have made a representation dated 23 rd

August, 2014 to the Lt. Governor in this regard. The learned ASG assures us

that the same shall be duly considered.

18. We accordingly dispose of this petition by requesting Hon'ble the Lt.

Governor in terms of para 13 hereinabove, including by calling a Special

Session of the Legislative Assembly of Delhi for nominating a person in place

of the Leader of Opposition to be consulted in the matter of appointment of the

Lokayukta, Delhi and further, in the face of the vacancy in the Office of the

Lokayukta, also give due consideration to the representation of the petitioner

and take appropriate action if necessary thereon.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE

SEPTEMBER 26, 2014 pp