IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.13877 OF 2013 DATED: 10-07-2014 Between:
Mr. Kamani Vijaya Kumar and another … Petitioners And Mr. Nama Ramaiah and others … Respondents THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.13877 OF 2013 ORDER: (per Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This writ petition is filed challenging the order dated 23-04-2013 passed by the Hon’ble Lokayukta of Andhra Pradesh/third respondent on the complaint made by the first and second respondents. The challenge is on the ground that the Hon’ble Lokayukta had no jurisdiction to pass the impugned order. 2.
Learned counsel for the petitioners has drawn our attention to the relevant provision of law in this regard.
3. Learned counsel for the first and second respondents submits that the petitioners have no locus to file the writ petition inasmuch as they have no right, title or interest in the property in question. In addition thereto he says that the Hon’ble Lokayukta has power to pass the impugned order.
4. Learned counsel appearing for the Hon’ble Lokayukta says that if the provision of law is read properly, it would appear that the Hon’ble Lokayukta has power to pass the order impugned.
5. We do not know what is the text of the complaint is, as no copy thereof is placed before us.
6. In view of the respective contentions of the parties, we reproduce the order passed by the Hon’ble Lokayukta:
“Having regard to the facts and circumstances, the Superintendent of Police, Prakasam district and the Tahsildar, Tanguturu Mandal, Prakasam district are directed to give protection to the complainants namely, Nama Ramaiah and Nama Kotaiah of Kummaripalem village of Prakasam district, in maintaining their possession in the Inam lands in Sy.No.633 admeasuring Ac.7-90 cents, Sy.No.1248/A admeasuring Ac.1-
51 cents and Sy.No.1248/B admeasuring Ac.0-69 cents, totalling to Ac.10-10 cents and restrain the encroachers from encroaching the same, pending further orders.”
7. The Hon’ble Lokayukta derives power from Sections 7, 11 and 12 of the Andhra Pradesh Lokayukta and Upa-Lokayukta Act, 1983. The said provisions are set out hereunder.
“7. Matters which may be investigated by Lokayukta or Upa-Lokayukta:- (1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by, or with the general or specific approval of, or at the behest of,—
(i) a Minister or a Secretary; or
(ii) a Member of either House of the State Legislature; or
(iii) a Mayor of the Municipal Corporation constituted by or under the relevant law for the time being in force; or
(iv) any other public servant, belonging to such class or section of public servants, as may be notified by the Government in this behalf after consultation with the Lokayukta, in any case where a complaint involving an allegation is made in respect of such action, or such action can be or could have been, in the opinion of the Lokayukta, the subject of an allegation.
(2) Subject to the provisions of this Act, the Upa-Lokayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant, other than those referred to in sub-section (1), in any case where a complaint involving an allegation is made in respect of such action, or such action can be or could have been, in the opinion of the Upa-Lokayukta, the subject of an allegation.
(3) Notwithstanding anything in sub-section (2), the Lokayukta may, for reasons to be recorded in writing, investigate any allegation in respect of an action which may be investigated by the Upa-Lokayukta under that sub-section, whether or not complaint has been made to the Lokayukta in respect of such action.
(4) Where two or more Upa-Lokayuktas are appointed under this Act, the Lokayukta may, by general or special order, assign to each of them matters which may be investigated by them under this Act:
Provided that no investigation made by the Upa-Lokayukta under this Act and no action taken or thing done by him in respect of such investigation shall be called in question on the ground only that such investigation relates to a matter which is not assigned to him by such order.
11. Evidence:- (1) Subject to the other provisions of this section, for the purpose of any investigation (including the preliminary verification if any, before such investigation) made under this Act, the Lokayukta or Upa-Lokayukta may require any public servant or any other person, who in his opinion is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document.
(2) For the purpose of any such investigation (including the preliminary verification) the Lokayukta or Upa-Lokayukta shall have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) in respect of the following matters, namely,—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any Court or Office;
(e) issuing commissions for the examination of witnesses or documents;
(f) such other matters as may be prescribed.
(3) Any proceedings before the Lokayukta or Upa- Lokayukta shall be deemed to be a judicial proceeding within the meaning of Section 193 of the Indian Penal Code, 1860 (Central Act 45 of 1860).
(4) Subject to the provisions of sub-section (5), no obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to the Government or any public servant, whether imposed by or under any law or by any instrument having the force of law, shall apply to the disclosure of information for the purpose of any investigation made under this Act and the Government or any public servant shall not be entitled in relation to any such investigation to any such privilege in respect of the production of documents or the giving of evidence as is allowed by any law or instrument as aforesaid in legal proceedings:
Provided that no person shall be compelled for the purpose of any investigation under this Act to give any evidence or produce any document which he could not be compelled to give or produce in any proceedings before a Court.
(5) No person shall be required or authorised by virtue of this Act, to furnish any such information or answer any such question or produce so much of any document,—
(a) as might prejudice the security or defence or international relations of India (including India’s relations with the Government of any other country or with any international organisation); or
(b) as might involve the disclosure of the proceedings of the Council of Ministers of the Government or any Committee of that Council; and for the purpose of this sub-section a certificate issued by the Chief Secretary to the Government certifying that any information, answer or portion of a document is of the nature specified in Clause
(a) or Clause (b) shall be binding and conclusive.
12. Reports of Lokayukta or Upa-Lokayukta:- (1) If, after investigation of any allegation in respect of any action under this Act, the Lokayukta or Upa-Lokayukta is satisfied that such allegation is substantiated either wholly or partly, he shall by a report in writing communicate his findings and recommendations along with the relevant documents, materials or other evidence to the competent authority.
(2) The competent authority shall examine the report forwarded to it under sub-section (1) and without any further inquiry take action on the basis of the recommendation and intimate within three months of the date of receipt of the report, the Lokayukta or, as the case may be, the Upa-Lokayukta, the action taken or proposed to be taken on the basis of the report.
(3) Where, in a report forwarded by the Lokayukta or Upa- Lokayukta, any recommendation imposing the penalty of removal from the office of a public servant falling within sub- clause (iv) or sub-clause (v) of Clause (k) of Section 2 has been made, it shall be lawful for the Government without any further inquiry to take action on the basis of the said recommendation for the removal of such public servant from his office and for making him ineligible for being elected to any office specified by the Government in this behalf, notwithstanding anything contained in any law for the time being in force.
(4) If the Lokayukta or Upa-Lokayukta is satisfied with the action taken or proposed to be taken on his findings and recommendations referred to in sub-section (1), he shall close the case under intimation to the complainant, the public servant and the competent authority concerned; but where he is not so satisfied and if he considers that the case so deserves, he may make a special report upon the case to the Governor and also inform the complainant.
(5) The Lokayukta and the Upa-Lokayukta shall present annually a consolidated report on the work done under this Act to the Governor.
(6) On receipt of the special report under sub-section (4) or the annual report under sub-section (5), the Governor shall cause a copy thereof together with an explanatory memorandum to be laid before each House of the State Legislature.
(7) Subject to the provisions of sub-section (2) 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 the Upa-Lokayukta, which may appear to him to be of a general, public, academic or professional interest, in such manner and to such persons as he may deem appropriate.”
Conjoint reading of the above sections clearly reflect without any shadow of doubt that the learned Lokayukta has no power to give any mandate or order except for limited purpose in Section 11, only for production of evidence in connection with investigation into merit of the complaint.
8. It is submitted that the petitioners have no locus on the subject matter. In writ proceedings, we cannot examine the right, title and interest of the parties. The petitioners submit that they were affected by the direction given by the Hon’ble Lokayukta and therefore this is good enough to have locus and maintain these writ proceedings. Locus on the subject matter is one thing and maintaining the writ proceeding is another thing. We hold that the writ petition is maintainable against the order impugned.
9. The writ petition is accordingly allowed. Pending miscellaneous petitions, if any, shall stand closed. No order as to costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J 10-07-2014 Svv