Delhi High Court

Krishak Bharat vs Union Of India And Ors on 7 August, 2015

Author: Rajiv Sahai Endlaw

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 7th August, 2015

+           W.P.(C) No.4912/1998 & CM No.12564/2003 (for directions).

       KRISHAK BHARAT                                               ... Petitioner
                   Through:            None.

                                    Versus

    UNION OF INDIA AND ORS                     ..... Respondents
                  Through: Ms. Barkha Babbar, Adv. for UOI.
                           Ms. Maninder Acharya, Sr. Adv. with
                           Mr. Yashish Chandra, Ms. Ishani Das,
                           Advs. for Lok Sabha with Mr. R.K.
                           Trivedi, Executive Officer, Lok Sabha
                           Secretariat.
                           Ms. Zubeda Begum, Adv. with Ms.
                           Sana Ansari, Ms. Vanessa Singh,
                           Advs. for Rajya Sabha.
                           Mr. Anil Grover with Ms. Divya Jain,
                           Advs. for NDMC.
                           Mr. Balendu Shekhar, Adv. for BJP.
                           Mr. Vaibhav Kalra, Adv. for MTNL.
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 (PIL), was premised on a news article published in

the magazine India Today of 29th July, 1998 reporting that a number of

politicians and political parties in occupation of government accommodation

allotted to them were in default of payment of electricity, water and

telephone charges with respect thereto and that no steps were being taken by

the municipal and other governmental agencies for recovery of the said

public dues. It was further reported that some politicians and political parties

also owed monies to five star hotels run by India Tourism Development

Corporation Ltd. (ITDC), a Public Sector Corporation, for events, functions

held therein or for use thereof and that the ITDC, run and managed by

bureaucrats under the control of the said politicians, had also not taken any

action for recovery of the said dues which were again public monies.

Reliefs, in this petition, of issuance of directions to (i) Cabinet Secretary; (ii)

Ministry of Urban Development; (iii) Ministry of Telecommunications; (iv)

Ministry of Tourism Development; and, (v) New Delhi Municipal Council

(NDMC), to recover the dues with penal interest at 24% per annum from the

defaulter politicians and political parties was claimed in the petition.

2. The petition was entertained and vide order of the very first date i.e.

24th September, 1998, ITDC and Mahanagar Telephone Nigam Limited

(MTNL) were also joined as respondents to the petition and notice issued to

all the respondents. On the contention of the counsel for MTNL that the dues

were owed to Bharat Sanchar Nigam Limited (BSNL) also, BSNL was also

impleaded as respondent to the petition.

3. In the last nearly 18 years for which the petition is pending, this Court

has endeavoured to make the public bodies to whom the monies were owed

recover their dues by directing them to take resort to all means thereof.

Alas, without much success. The zeal, which the same public bodies show

to recover similar dues from other citizens not yielding any power, was

found to be totally missing and which in fact had resulted in the arrears

accumulating.

4. The possibility of having the recoveries effected through the Lok

Sabha and Rajya Sabha Secretariats was also explored. Rule 23 of the

Members of Parliament (Travelling and Daily Allowances) Rule, 1957

framed under the Salary and Allowances of Members of Parliament Act,

1954 provides for deduction of certified government dues such as house

rent, telephones dues from the next salary or travelling allowance or daily

allowance of the Member. It was thus enquired from MTNL and NDMC as

to why they had not approached the Rajya Sabha and Lok Sabha Secretariats

in this regard. Notice was issued to the said Secretariats as well. The order

dated 13th October, 2004 records the assurance of the Lok Sabha Secretariat

that a sum of Rs.3,000/- per month will be deducted from the

salaries/allowances of the 51 sitting MPs who owed dues to NDMC and of

the 11 MPs who owed dues to MTNL. Similarly the Rajya Sabha Secretariat

also informed on that date that recoveries were being made from the

allowances of the sitting MPs. The order dated 15 th March, 2007 however

records the stand of the Secretariats of Lok Sabha and Rajya Sabha that the

amounts due were huge and it was not possible to recover the same by way

of deduction from the salaries. The Secretariats of the Lok Sabha and Rajya

Sabha, on 6th August, 2008 informed that they could deduct the dues only

from the salaries of sitting MPs and that they could do nothing about the

dues of ex-MPs. Vide order dated 9th May, 2012 the Lok Sabha and Rajya

Sabha Secretariats were directed to examine whether deductions could be

made from the pension payable to the ex-MPs who were defaulters of

electricity, water and telephone dues. In response thereto, they on 10 th July,

2012 informed that in terms of Section 60(1)(g) of the Code of Civil

Procedure, 1908 and as per the judgment in Radhey Shyam Gupta Vs.

Punjab National Bank AIR 2009 SC 930, no recovery could be made from

the ex-MPs. On 22nd January, 2013, the Lok Sabha Secretariat gave their no

objection to disconnection of the telephone connections of the sitting MPs

who were in arrears. The Lok Sabha Secretariat on 24 th May, 2013 also

gave no objection to disconnection of water, electricity and telephone

connections of sitting MPs who had failed to pay their dues. The Lok Sabha

Secretariat on that date further informed that it was not possible to deduct

and pay more than 10,000/- per month towards existing dues payable by the

sitting Lok Sabha MP to the service providers / authorities. Vide order dated

26th July, 2013, order of disconnection of electricity, water and telephone

facilities of the sitting Rajya Sabha Members in arrears was also made on

the parity of the Lok Sabha.

5. During the pendency of this petition, the elections to Lok Sabha were

due. The order dated 4th February, 2004 records that the Election

Commission of India (ECI) in terms of the directions issued by the Supreme

Court in Union of India Vs. Association for Democratic Reforms (2002) 5

SCC 294, had issued a direction requiring candidate seeking election to

Parliament or State Legislature to along with his nomination form disclose

the liabilities if any particularly of any overdues of any public financial

institution or Government dues. Notice was issued to the ECI to show cause

as to why no objection certificate was not insisted upon and whether the ECI

was going to insist upon the said certificate in the then ensuing elections.

The order dated 1st March, 2014 also records that ECI had issued an order

dated 27th March, 2003 containing the form of the affidavit which a

candidate along with his nomination papers was required to submit, giving

particulars of the government dues owed by him. A direction was also issued

for the ECI to before election widely advertise the government dues owed by

each of the contesting candidates.

6. However since none of the measures aforesaid resulted in any

substantial recoveries, this Court next turned its attention to the political

parties to whom the ex-MPs owing such arrears belonged, and vide order

dated 6th August, 2008 directed for such political parties to be identified for

attempting recovery therefrom. On 3rd December, 2008 it was informed that

the ex-MPs owing dues belonged to as many as 43 political parties. Notice

of the petition was accordingly ordered to be issued to the said political

parties as well. The counsel for the political parties which chose to appear in

pursuance to the notice, on 22nd July, 2009 took time to consider as to how

they could compel their members to clear the dues towards electricity, water,

telephone etc. However this also did not meet with any success. In fact

most political parties chose not to appear.

7. We have encountered a total lack of will on the part of governmental

agencies to whom dues are owed, to recover the same from the politicians

and political parties. This is demonstrated from the order dated 12th

November, 2003 when ITDC reported that Indian Youth Congress owed a

sum of Rs.2,91,958.97p to it and though proceedings under the Public

Premises (Eviction of Unauthorized Occupants) Act, 1971 had been initiated

for recovery of the said dues and a certificate under Section 14 thereof for

the said amount had also been obtained but no steps had been taken for

execution of the said recovery certificate. Similarly, the order dated 22nd

January, 2013 records that MTNL and BSNL had obtained awards under

Section 7B of the Indian Telegraph Act, 1885 for recovery of its dues from

as many as 194 ex-MPs and that the Lok Sabha and Rajya Sabha Secretariats

had provided details to MTNL of the bank accounts of the ex-MPs to enable

the MTNL to execute the said awards. However, inspite thereof, no

recovery was reported.

8. Thus, neither the cajoling by this Court of the governmental agencies

to whom dues are owed could spur them into action for recovery thereof nor

the different avenues explored by this Court to effect recovery of dues from

the defaulter politicians and political parties have had any substantial

success. The inertia and reluctance of the governmental agencies to treat

their political masters equally, as they treat other citizens, has proved to be

insurmountable. At the same time, the defaulter politicians and political

parties are found to have misused their position of power for their own

benefit and gain. All have in the process forgotten the social philosophy and

philosophy of law in this area which emphatically requires that offices of

public power shall not be the workshops of personal gain. Those wielding

power, have made it an instrument of self seeking, forgetting that power is

like a trust and that abuse of authority by those in power inevitably causes

mass disillusionment and results in public frustration. The frustration part is

evident from the petitioner also having lost interest in this petition and

having stopped appearing and pursuing the same.

9. We are of the opinion that rather than continuing to flog the issue of

recovery of old dues and which with the passage of time may not bear much

fruit, the need of the hour is to ensure that at least the present MPs, Members

of Legislative Assembly (MLAs) and political parties are not able to

consume electricity, water and telephone amenities or the facilities at ITDC

hotels or the facilities and amenities provided by other governmental

agencies, without paying therefor. Else we fret that in our continued efforts

to recover old dues, the dues may keep multiplying. None has reported the

steps if any taken to ensure that the situation highlighting which this petition

was filed, does not re-occur.

10. After having given our considered thought including on the various

steps which were taken during the pendency of the present petition, we feel

the need to issue directions which will ensure that the MPs, MLAs and the

political parties, taking advantage of the clout enjoyed by them over the

officials of the municipal, electricity, water, telephone and other facilities

agencies, are not able to escape paying the dues therefor.

11. The Supreme Court recently in S.D. Bandi Vs. Divisional Traffic

Officer KSRTC (2013) 12 SCC 631 faced with the issue of continued

unauthorized occupation of government accommodation and non recovery

of charges therefor inspite of existence of provisions / rules, directions, laws

for dealing therewith, owing to use of influence by the defaulters / errants or

taking advantage by them of the lengthy procedures provided under the

laws, issued directions in the form of suggestions to address the issue. It

was observed that since allotment of government accommodation is a

privilege given to Ministers and Members of Parliament, action for breach of

privilege would also lie. We, in formulating the directions hereunder given,

have taken guidance therefrom as well.

12. One of us (Rajiv Sahai Endlaw, J.) sitting singly, in Raj Kumar Vs.

NDPL MANU/DE/2185/2011 (and against which no appeal is found to have

been preferred) was concerned with the stand of electricity distribution

companies as the NDPL of seeking to recover the electricity dues of earlier

occupant of government accommodation from the subsequent allottee of

such accommodation and which was resulting in none being interested in

taking allotment of accommodation with respect to which electricity arrears

were due and which in turn was found to have created a situation of a large

number of government houses lying unutilized. The problem was sought to

be solved by directing the Estate Office of the government to insist upon the

occupant, before surrendering the accommodation, furnishing a No dues

Certificate from the electricity distribution company and making it a term of

occupation that dues of electricity shall be receivable / adjustable from the

emoluments of the allottee. Though we do not know whether the said

direction is being abided with, but a similar arrangement can be made here

also.

13. We accordingly issue the following directions:-

A. The respondents i.e. NDMC, MTNL, BSNL and any other

municipalities/governmental agencies providing any chargeable

amenities/facilities to the houses in occupation of the MPs,

MLAs and political parties, whether such houses belong to the

government or otherwise, to not allow arrears of more than of

three months of said charges to accumulate.

B. If the said charges are in arrears for three months, the

facility/amenity/utility be disconnected forthwith, of course in

accordance with law.

C. If payment of any part of the said charges with respect to

government accommodation is to be made by the government

or any department of the government and where as per terms of

allotment of such accommodation or otherwise the

responsibility of onward payment of charges including share of

occupant is of the government, then the Estate Office or other

department allotting such accommodation to also not allow

arrears of share of the charges payable by the occupant to

accumulate for a period of more than three months and to

immediately thereafter have the facility / amenity disconnected.

D. The agency providing such facility/amenity/utility to within six

months after the aforesaid disconnection initiate proceedings

for recovery/realization of the amounts due.

E. The agency providing such facilities/amenities/utilities to also

intimate the said arrears to the Secretary of the Lok Sabha or

the Rajya Sabha or of the Legislative Assembly of which the

occupant is a member and the Secretariat of the Lok Sabha or

the Rajya Sabha or the Legislative Assembly of which the said

occupant may be a member to use his/her good offices to ensure

payment and take such other steps as may be permissible in

law.

F. The Secretariats of the Lok Sabha, Rajya Sabha and Legislative

Assembly as well as the House Allotment Committee to within

six months hereof explore as to whether any action for

cancellation of allotment of the house of such occupant in

arrears or of putting a stop to any further allotments in favour of

members of the political party to whom the occupant in default

belongs can be initiated and make provision therefore.

G. The agency providing such amenity/facility/utility to also

within one month of the charges being due for three months,

communicate said fact to the political party to which the

occupant belongs.

H. The ECI to, as directed in the earlier orders in this petition,

continue to insist upon the candidates desirous of contesting an

election to Parliament or to Legislative Assembly, along with

their nomination form furnishing an affidavit of their being not

in arrears of any public dues and if such candidate is in

occupation of or in the past ten years been in occupation of any

government accommodation to furnish a No Dues Certificate

from the agency providing electricity, water and telephone to

the said accommodation.

I. The ECI to also within six months consider the possibility if

any of putting any impediment to a defaulter of public dues

contesting election, to ensure quick recovery of the said dues.

J. The ECI to within six months hereof also consider the

possibility of requiring political parties fielding candidates in

any election to also furnish an affidavit that they are not in

arrears of any electricity, water, telephone or other public dues,

as a pre-condition to their fielding candidates in any election.

K. ITDC and other public sector undertakings providing any

chargeable services to political parties, MPs or MLAs to also

not allow credit to them beyond what they usually allow to

other customers and to take steps for recovery thereof and to

similarly convey the names of the defaulters to the Secretariats

of Parliament/Legislative Assembly.