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2018 DIGILAW 547 (ALL)

RAMAYAN RAO v. LOKAYUKT, STATE OF Uttar Pradesh

2018-03-06

MUKHTAR AHMAD, RAN VIJAI SINGH

body2018
JUDGMENT By the Court.—We have heard Sri Vashishta Tiwari, learned Counsel for the petitioner, Sri Nithin Sharma, learned Counsel appearing for respondent No. 1 and Sri Alok Kumar Srivastava, learned Counsel appearing for respondent No. 4. 2. By means of this writ petition, prayer has been made to issue a writ of certiorari quashing the orders dated 24.7.2014 and 2.6.2014 passed by Lokayukta, Uttar Pradesh. vide order dated 2.6.2014, the Secretary of Lokayukta, Uttar Pradesh has informed that Lok ayukta has rejected the complaint of the petitioner under Sub-Section(1) of Section 8 of Uttar Pradesh Lok Ayukta Act, 1977 (in short the Act) whereas by subsequent order dated 24.7.2014, Review Application filed by the petitioner has been rejected. 3. The facts of this case, in brief, are that the petitioner filed a complaint, regarding the irregularities committed by the respondent No. 4 in the capacity of Chairman, Nagar Palika Parishad, Deoria on 4.2.2012, on prescribed format as contained in Uttar Pradesh Lok Ayukta Act and Rules 1977 (in short the Rules). It appears that after filing of the complaint, a preliminary inquiry was conducted by Lokayukta while exercising his powers under Section 10 of the Act. After the preliminary inquiry, a notice was sent to the petitioner by Secretary of Lokayukta, Uttar Pradesh on 24.4.2014 requiring his comments upon the version submitted by respondent No. 4 in response to the complaint. The petitioner herein has filed his counter reply. Thereafter, the matter was examined by Lokayukta and it revealed that the complaint is not maintainable in view of the provisions contained in sub-section (1) of Section 8 of the Act. The decision was taken by Lokayukta as stated herein above on 2.6.2014. The petitioner thereafter has filed Review Application. The said Review Application has also been dismissed vide order dated 24.7.2014. These orders have been made the subject-matter of this petition. 4. While assailing the aforesaid orders, learned Counsel for the petitioner contends that once complaint was entertained and objection was filed by petitioner in response to the notice of Lokayukta dated 24.4.2014, then decision ought to have been taken by Lokayukta under Sub-section(5) of Section 10 of the Act after recording reasons, which has not been done in this case and the respondent No. 1-Secretary of Lokayukta has passed cryptic order which does not contain any reason as required under Sub-Section(5) of Section 10 of the Act. 5. 5. Refuting the submission of learned Counsel for the petitioner, Sri Sharma, learned Counsel for the respondents contended that while filing the complaint, as required under the Act on proper format, the petitioner has concealed material facts by mentioning at Sl.No. 3(kha)-(Kya Aap Lok sewak hain ya nahin) that complainant is not Lok Sewak and Under this misconception, the response of respondent No. 4 was sought for by the office of Lokayukta but when response/written statement has been filed and in that specific objection has been raised that the complaint itself is not maintainable as the complainant is a public servant and the matter came in the notice of learned Lokayukta, he considering the provision contained under Section 9 of the Act has passed the impugned order disposing of the complaint by observing that it is not maintainable in view of the provisions contained under sub-section1 of Section 8 of the Act. For appreciating the controversy, we would like to reproduce the relevant portions of Section 2(j), Section 8 (1)(a), Section 9(1) (A) (b) and Section 10 (1)(b) and (5) which are as under; Section 2(j):”Public Servant” denotes a person falling under any of the following descriptions, and includes, subject to the provisions of sub-section(4) of Section 8, a person who at any time in the past fell under any of the following descriptions, namely- i)every Minister referred to in clause(g); ii)every member of the Legislative Assembly or the Legislative Council of the State of Uttar Pradesh not being the Chief Minister or Minister referred to in clause(g); iii) every officer referred to in clause(h); iv)(a) every Pramukh of a Kshettra Samiti; (b) every Adhyaksha of a Zila Parishad; (c) every Nagar Pramukh of a Nagar Mahapalika; (d) every President of the Municipal board of a city as defined in clause(4) of Section 2 of the Uttar Pradesh Municipalities Act,1916. Section 8 (1): Except as hereinafter provided, the Lokayukta or an Up-Lokayukta shall not conduct any investigation under this Act- (a) except on a complaint made under and in accordance with Section 9. Section-9(1): subject to the provisions of this Act, a complaint may be made under this Act to the Lokayukta or an Up-Lokayukta. Section 8 (1): Except as hereinafter provided, the Lokayukta or an Up-Lokayukta shall not conduct any investigation under this Act- (a) except on a complaint made under and in accordance with Section 9. Section-9(1): subject to the provisions of this Act, a complaint may be made under this Act to the Lokayukta or an Up-Lokayukta. (a) in the case of a grievance, by the person aggrieved; (b) in the case of an allegation, by any person other than a public servant: Provided that, where the person aggrieved is dead or is for any reason unable to act for himself, the complaint may be made by any person who in law represents his estate or as the case may be, by any person who is authorized by him in this behalf. Provided further that in th case of a grievance involving complaint referred to in sub-clause(ii) of Clause (d) of Section 2, the complaint may be made also by an organization recognized in that behalf by the State Government. Section 10(1): Where the Lokayukta or an Up-Lokayukta proposes (after making such preliminary inquiry, if any, as he deems fit to conduct any investigation under this Act, he- (a) shall forward a copy of the complaint to the public servant concerned and the competent authority concerned; (b) shall afford to the public servant concerned an opportunity to offer his comments on such complaint; and (c) may make such orders as to the safe custody of documents relevant to the investigation, as he deems fit. (4) The Lokayukta or an Up-Lokayukta may, in his discretion, refuse to investigate or case to investigate any complaint involving a grievance or, an allegation, if in his opinion- (a) the complaint is frivolous or vexatious, or is not made in good faith; or (b) there are no sufficient grounds for investigation or, as the case may be, for continuing the investigation; or (c) other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies. (5) In any case where the Lokayukta or an Up-Lokayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint, he shall record his reasons therefor and communicate the same to the complainant and the public servant concerned. 6. (5) In any case where the Lokayukta or an Up-Lokayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint, he shall record his reasons therefor and communicate the same to the complainant and the public servant concerned. 6. From the perusal of Section 2(j)(iv)(d), it transpires that if the complainant has been the Ex-President of the Municipal Board, he will fall under the ambit of public servant. Whereas, from the perusal of the sub-section(1) (b) of Section 9 of the Act, it transpires that complaint can be made with regard to allegation by any person other than a public servant. Whereas in view of sub-section(a) of Section 8 of the Act, the Lokayukt cannot conduct any investigation unless the complaint made is in accordance with Section 9. If Section 2 (j), Section 8 and Section 9 as discussed herein above, are read together, then it will transpire that complaint cannot be investigated if it has been made by a public servant. Here, in this case, it is not in dispute that complainant is the Ex-Chairman of Municipal Board. Therefore, we are of the considered opinion that this kind of complaint could not be investigated by the Lokayukta as the same was made by a public servant in view of Section 8 of the Act. 7. Sri Tiwari, learned Counsel appearing for the petitioner contended that once objection was invited and counter reply had been filed then the order could only be passed under sub-section(5) of Section 10 of the Act. Section 10 of the Act deals with the procedure in respect of the investigation. Wherein, under sub-section 1(b) of Section 10, it is mandated that before investigating the matter finally, the concerned public servant must be afforded an opportunity to offer his comments and the Lok Ayukta after going through the complaint and the objection/counter reply, if decides not to entertain the complaint or discontinued the investigation in respect of the complaint, then he shall record his reason and thereafter, shall communicate the same to the public servant. There may be substance in the submissions of Mr. Tiwari, provided the counter reply/written statement was sought for by the Lokayukta knowing the fact that complainant is a public servant. Here, as we have discussed, herein above, the petitioner while filing complaint has in fact concealed this fact that he is a public servant. There may be substance in the submissions of Mr. Tiwari, provided the counter reply/written statement was sought for by the Lokayukta knowing the fact that complainant is a public servant. Here, as we have discussed, herein above, the petitioner while filing complaint has in fact concealed this fact that he is a public servant. Therefore, the arguments advanced by learned Counsel for the petitioner is misconceived for simple reason that complaint was to be filed under Section 8 of the Act in accordance with the provisions contained under Section 9 of the Act and allegations made in the complaint could only be investigated if the same has been made by the person aggrieved or any person other than a public servant. In view of the fact that the complainant is a public servant and when this fact came into the notice of Lokayukta, it was well within the competence of the Lokayukta to drop the proceedings for the simple reason that in case in such a situation any order on the merit of the complaint is passed by the Lokayukta then it would be nothing except a futile exercise resulting into an order being without jurisdiction. It is well-settled that any order passed by an authority which is without jurisdiction is a nullity. Reference may be had to the decision of the Apex Court in Managing Director, Army Welfare Housing Organization v. Sumangal Services Pvt. Ltd., (2004) 9 SCC 619 , Sarup Singh and another v. Union of India and another, (2011) 11 SCC 198 , Division Bench decision of this Court in the case of Committee of Management Shri Jawahar Inter College and another v. State of Uttar Pradesh and others in the Special Appeal No. 164 of 2012 decided on 15.1.2012, Rajesh Kumar Shukla v. State of Uttar Pradesh and others, (2017) (7) ADJ 601 and Mithai Lal v. State of Uttar Pradesh and others (Writ-A No. 24586 of 2014) decided on 12.10.2017. 8. 8. The matter may be examined from another angle too, assuming the argument of learned Counsel for the petitioner is accepted that after calling of the objection and filing of the same, the order was to be passed only under sub-section 5 of Section 10 of the Act and not sub-section 1 of Section 8 of the Act that would amount to compel the Court to issue a futile writ which in our opinion is not desirable in view of the law laid down by the Apex Court as well as this Court in Dr. J. Shashidhara Prasad v. Governor of Karnataka and another, AIR 1999 SC 849 , Common Cause (A Regd. Society) v. Union of India and others, AIR 2008 SC 2116 , and Punjab National Bank and others v. Manjeet Singh and another, AIR 2007 SC 262. In view of foregoing discussion, we do not find any merit in this petition. The writ petition lacks merit and it is hereby dismissed.