Present:
Hon'ble Mr. Justice Amitava Lala, Acting Chief Justice.
Hon'ble Mr. Justice Pradeep Kumar Singh Baghel.
Appearance:
For the Petitioner : Mr. M.D. Singh Shekhar, Sr.Advocate, Mr. Shantanu Bisen.
For the Intervenor : Mr. D.V. Singh.
For Respondent Nos. 1 to3/ State Respondents : Mr. S.P. Gupta, Advocate General, & Mr. Yashwant Varma, Chief Standing Counsel.
For Respondent Nos. 4 & 5 : Mr. Navin Sinha, Sr. Advocate, Mr. Vipin Sinha, & Mr. Devansh Rathore.
For the Respondent No. 7/ Noida Authority : Mr. Ravindra Kumar, & Mr. Shivam Yadav.
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Amitava Lala, ACJ.--The petitioner is a registered society working as Non-Governmental Organization (NGO) rendering its services for the society at large and raising the different issues, which are adversely affecting common constitutional interest of the citizens of the country. It has filed the present writ petition in the form of public interest litigation praying inter alia for directing the State of Uttar Pradesh-respondent no. 1 to transfer Sri Rakesh Bahadur, I.A.S., Chairman, New Okhla Industrial Development Authority, Gautam Budh Nagar (in short called as the "NOIDA") and Sri Sanjeev Saran, I.A.S., Chief Executive Officer, NOIDA, the respondent nos. 4 and 5 respectively in the present writ petition, and to issue suitable orders declaring all the orders and decisions taken by the said respondent nos. 4 and 5 as non est and ineffective. Further directions have also been sought for upon the respondent no. 1 to initiate enquiry of the entire matter by an independent agency and to restrain the respondent nos. 4 and 5 from holding the respective offices of NOIDA. It has also been prayed that the State of Uttar Pradesh be directed to formulate a scheme of posting of I.A.S. Officers over sensitive and important posts. Other incidental prayers have also been made.
Learned Advocate General has contended before us that the petitioner society belongs to District Pratapgarh, Uttar Pradesh and is espousing the cause of the NOIDA. The tenure of such society has already expired. Learned Senior Counsel appearing for the respondent nos. 4 and 5 has stated that this writ petition is virtually a proxy petition of the other interested persons, which he has categorically stated in Paragraph Nos. 8, 11 (h to j), 15 and 39 of the counter affidavit. To that the writ petitioner has stated that every citizen has the right to raise the cause of public interest particularly if it appears that any action is causing harm to the public exchequer. He said that these officers have indulged corrupt practice and misused their position. Further, learned Advocate General has contended that the dispute is with regard to appointment of respondent nos. 4 and 5 and not with regard to transfer or posting, therefore, in the service matter public interest litigation is not maintainable as per the ratio propounded by the Supreme Court in the judgments reported in 2010 (9) SCC 655 (Hari Bansh Lal Vs. Sahodar Prasad Mahto and others) relying upon the judgment reported in 1993 (4) SCC 119 (R.K. Jain Vs. Union of India) amongst others, which, according to us, is factually distinguishable herein. In any event, so far as locus is concerned, we find that much water has flown by the river Ganges as we come to know from the ratio of the judgement reported in 2011 (5) SCC 29 (Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh).
As a first blush the writ petition appears to have been filed for intervention with the service i.e. posting, etc. of the respondent nos. 4 and 5, which cannot be adjudicated in the public interest litigation, but when we entered into various aspects of the matter, we find that the element of "colourable exercise of power" is a prime cause behind initiation of this public interest litigation, wherein "lifting of veil" is far more required. In 2010 (3) SCC 402 (State of Uttaranchal Vs. Balwant Singh Chaufal), 2011 (9) SCC 354 [Delhi Airtech Services (P) Ltd. Vs. State of U.P.] and Akhil Bhartiya Upbhokta Congress (supra) it has been categorically held by the Supreme Court that to unearth corruption and maintain probity and morality in the governance of the State there should not be any embargo in making public interest litigation. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Reasons become further cogent when we find that another Division Bench of this Court at the time of entertaining this writ petition made certain observations by an order dated 29th June, 2012, which are as follows:
"However, from the records of the present petition, we find that against respondent nos. 4 and 5, departmental proceedings have been initiated by the State Government in respect of their acts and omissions, while discharging duties earlier, as Chairman and Chief Executive Officer of NOIDA respectively. The State Government is not only proceeding departmentally against these officers, it has also lodged a first information report in respect of their acts. The allegations in the first information report besides other are that because of deliberate acts of the said officers, which were motivated by other considerations, loss of more than 47,00 crores (sic.)(47 thousand crores) has been caused to the State Government.
The Court has been informed that a final report has been submitted in the criminal case but the same has not been accepted by the Court concerned till date.
Prima facie we are of the opinion that the State Government must examine for itself at the first instance as to whether it is appropriate that respondent nos. 4 and 5, who are facing departmental disciplinary proceedings and are being investigated for criminal offence, for their acts and omissions pertaining to earlier posting at the same offices at NOIDA, be posted elsewhere till acquitted in the proceedings aforesaid or not.
It is needless to emphasize that when there are serious allegations of loss being caused to the State Government because of alleged acts and omissions on the part of the officers, running into thousands of crores of rupees, it has to be considered as to whether for fair and impartial enquiry/investigation, such officers be kept away from the concerned offices or not.
This Court may refer to the judgements of the Apex Court in the case of U.P. Rajya Krishi Utpadan Mandi Parishad & others vs. Sanjeev Ranjan reported in 1993 (2) JT 550 and in the case of Sri P.K. Dave vs. Peoples Union of Civil Liberties (Delhi) & others, reported in 1996 (5) JT 381, wherein it has been laid down that ordinarily when there are allegations of defalcation of money against the head of the institution then such person should be kept out of office till the charges are finally disposed of.
Any observations made herein above by this Court shall not prejudice the discretion of the State Government in any manner. It is open for the State Government to arrive at a fair and just decision on the material available with it.
The exercise, as aforesaid, be completed by respondent no.1 before the next date fixed in the matter. The decision be brought on record by the said date.
On behalf of intervenor, Sri U.N. Sharma, learned Senior Advocate, it has been contended that if the Court is proceeding to entertain the present petition, it would be fair that an inquiry may also be directed to be conducted against the officers, who have been holding the offices concerned for last five years, inasmuch as there have been serious adverse observations of various Courts in the matter of lease/transfer of land within the jurisdiction of NOIDA.
Petitioner as well as the State-respondents may file reply to the Intervention Application made by the intervenor by the next date.
Sri U.N. Sharma, learned Senior Advocate on behalf of intervenor is permitted to file such further affidavit as may be necessary by the next date.
List this matter on 31st July, 2012 before appropriate Bench."
However, neither any affidavit in compliance of the above mentioned order has been filed nor the directions made therein have been complied with. It appears to us that due to change of roaster the officials preferred to ignore the order of this Court dated 29th June, 2012. Thereafter time to time the matter came up before this Court. This Bench has also passed an order on 14th August, 2012 not only restricting itself to the cause of transfer of the respondent nos. 4 and 5 but by appointing Special Officer/s with a limited purpose to visit the locale, collect the materials in connection with several allotments and submit a report before this Court. At the time of passing such order, though the learned Counsel appearing for the NOIDA had contended that they would supply all the materials but since the NOIDA is under the control and supervision of the respondent nos. 4 and 5, we wanted an independent report of the Special Officer/s, which has been prepared and submitted before this Court under the sealed cover. As and when the order was passed by this Bench appointing Special Officer/s, surprisingly learned Senior Counsel appearing for the petitioner became little tilted being forgetful that the Court has intervened at his instance for the larger public interest, otherwise writ petition would have been treated to be simplicitor service dispute. He misunderstood the movement of the Court and took adjournment in a complaining mood. We are of the view that in a case of public interest litigation, it is duty of the petitioner to bring certain facts before the Court and thereafter it is a matter between the Court and wrongdoers, if any. Like other litigations, the Court cannot proceed on the fixed parameters. In any event, by an order dated 01st October, 2012 the Court was pleased to direct the petitioner to pay the remuneration as well as other expenses of the Special Officers. On 15th October, 2012 an application has been filed by the petitioner, being Civil Misc. Recall Application No. 315426 of 2012, for recalling the order dated 01st October, 2012 on the ground that the petitioner could not manage the amount payable to the Special Officers. We are of the view that the ground of lack of fund for the purpose of payment of remuneration and other incidentals to the Special Officers cannot be accepted from such type of petitioner who wanted to have luxury and has engaged very senior lawyers of this Court for espousing the cause of such sensitive issue and got the matter argued on day to day basis. Therefore, such recalling application is rejected, however, without imposing any cost. It is directed that the remuneration and other expenses, if not already paid, will be paid by the petitioner within a period of three weeks from this date, otherwise the same will be recovered by the concerned District Magistrate as arrears of land revenue and will be paid to them. Upon payment or recovery of remuneration, cost and expenses, etc., the Special Officers will be discharged from their duty as Special Officers and one of them Mr. Arnab Banerji, learned Advocate of this Court, will be treated to be amicus curiae to assist the Court for the future.
During the course of proceedings, an application has been filed by an Advocate of this High Court to intervene in the matter annexing therewith copies of several important documents to establish the charges of corruption as against the respondent nos. 4 and 5. Such impleadment application has been allowed by the Court by order dated 17th October, 2012 following the provisions of Chapter XXII Rule 5-A of the Allahabad High Court Rules, 1952. Learned Counsel appearing for such impleaded party has been directed to argue the matter in respect of merit of the case when he wanted to establish that during his/their tenure various lands identified for planned development have been given to the private builders to make large residential complex. In paragraphs 12 and 13 of the intervention application several complaints were made by the intervenor regarding transfer of lands during the tenure of the respondent nos. 4 and 5. In one case without acquisition of land under Section 6 of the Land Acquisition Act, it had been transferred to the builders. Our attention has been drawn to various lease deeds executed by the NOIDA authorities in respect of 718.16 bighas of land in favour of the builders for a total consideration of Rs.24,32,09,52,841.19. Those lease deeds have been brought on the record. During the course of arguments, the learned Counsel appearing for the respondents did not dispute the existence of those lease deeds. Incidentally, we have come to know that the respondent no. 4 was working as Chairman, NOIDA from July, 2005 to 15th May, 2007 when the respondent no. 5 worked as Chief Executive Officer, NOIDA from 15th September, 2005 to 15th May, 2007 in the earlier occasions. Surprisingly, such persons before completion of the departmental enquiry and criminal proceedings have been reengaged in the same posts by May, 2012 where they are presently working.
Charged with such submissions, learned Senior Counsel appearing for the petitioner has brought to our notice the fact regarding pendency of another writ petition, being Civil Misc. Writ Petition (P.I.L.) No. 53639 of 2008 (Azad Hind Fauj and another Vs. State of U.P. and others), which had been moved before this Court against the illegal allotment of land by the same respondents. In such writ petition, on 24th October, 2008 a Division Bench of this Court, presided over by one of us (Amitava Lala, J.), was pleased to direct the State to file counter affidavit but no counter affidavit has been filed till now.
Against this background, he said that not the regime of any political party but the Government itself does not want to take any step against such type of persons. They want to give premium to their misconduct.
In the present case, though the parties have exchanged their respective affidavits but in spite of giving repeated directions the State has not come forward with any submission with regard to the stage of investigation and completion thereof. Thus, it is crystal clear that these two respondents i.e. respondent nos. 4 and 5 are getting the State patronage and, as such, it is a fit case where an independent agency, not under the control of the State Government, can be directed to make at least a preliminary enquiry by the Central Bureau of Investigation (C.B.I.) as has been held by the Supreme Court in the judgment reported in 2011 (6) SCC 508 (Noida Entrepreneurs Association Vs. Noida and others). Though the learned Advocate General has contended on instructions that the respondent no. 5 has acted as a part of the Board of the NOIDA Authority not as an individual and the departmental proceeding has been completed and forwarded to the Chief Minister for taking ultimate decision, but they have been charge-sheeted in the criminal proceedings. It is also submitted by the petitioner that the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India, New Delhi vide order dated 23rd October, 2012 has clarified the position that it had granted sanction in respect of two cases in 2004 and 2007 of Sri Rakesh Bahadur, the respondent no. 4, wherein request of C.B.I. for prosecution sanction in Prevention of Corruption Act, 1988 was received. Learned Advocate General with tooth and nail fought for the respondent nos. 4 and 5 even saying that these two persons have improved the conditions of NOIDA. However, it appears that at one point of time the State itself issued orders of suspension against these two incumbents. When the suspension orders were issued against them though the same were stayed by the Central Administrative Tribunal but the matter had reached to the High Court. Pertinently, the State Government had preferred to file writ petitions against these two officers in the High Court, being Civil Misc. Writ Petition No. 13106 of 2010 (State of U.P. through its Chief Secretary and another Vs. Central Administrative Tribunal and others) and Civil Misc. Writ Petition No. 13108 of 2010 (State of U.P. through its Chief Secretary and another Vs. Central Administrative Tribunal and others) challenging the orders of the Central Administrative Tribunal staying suspension of the respondent nos. 4 and 5, and this Court in such writ petitions stayed the orders of the Central Administrative Tribunal. Consequently, the suspension orders were revived. Therefore, double stand of the State in respect of these two respondents is not understandable at all. Learned Advocate General has made an emphasis that the authority cannot act solely but as per Section 3(3) of the U.P. Industrial Area Development Act, 1976 the authority consists of several persons. Section 3(3)(a) with proviso of the said Act, 1976 speaks as follows:
"3 (3) The Authority shall consist of the following:
(a) The Secretary to the Government, Uttar Pradesh, Industries Department or his nominee not below the rank of Joint Secretary--ex officio Member-Chairman.
Provided that the Chairman of the Uttar Pradesh Industrial Development Corporation shall be the ex-officio Chairman of the Uttar Pradesh State Industrial Development Authority."
Much emphasis has been given on a Supreme Court judgment reported in 2011 (7) SCC 493 (ITC Limited Vs. State of Uttar Pradesh and others) in respect of the respective plots of NOIDA allotted by the authority by way of conversion of commercial land to industrial land without formal change of land use and the Court, based on the order of the High Court, has said that it is a mistake. However, we find that such order is remedial in nature to protect the interest of the lease holders/purchasers of the land by paying the difference of the amount. Such judgment does not speak about the enquiry or investigation regarding conduct or dealings or misdeeds, if any, of the Chairman and Chief Executive Officer of NOIDA, particularly when criminal proceedings are pending in which charge sheet has been given and when Ministry of Personnel, Union of India, had granted necessary sanction and request for prosecution sanction was received by the C.B.I.. Against this background, we hold and say that the submissions of the State and additional submissions in support of such submission by the learned Counsel appearing for the NOIDA and the respondent nos. 4 and 5 cannot attract us at this stage without further investigation. It is necessary to record herein that the Division Bench, hearing the other two matters in connection with suspension orders, has passed the interim orders on 29th March, 2010 in Civil Misc. Writ Petition No. 13106 of 2010 (State of U.P. through its Chief Secretary and another Vs. Central Administrative Tribunal and others) and Civil Misc. Writ Petition No. 13108 of 2010 (State of U.P. through its Chief Secretary and another Vs. Central Administrative Tribunal and others) staying the order of stay of the suspension orders passed by the Central Administrative Tribunal upon recording various facts. So far as catena of decisions cited before this Court by the respective parties are concerned, the same will be considered at the time of finalization of the issue.
In view of the above, considering the seriousness of the situation and also following the principle laid down by the Supreme Court in the judgments reported in 2010 (3) SCC 571 (State of West Bengal and others Vs. Committee for Protection of Democratic Rights, West Bengal and others) and 2011 (12) SCC 328 (T.C. Thangaraj Vs. V. Engammal and others), the Central Bureau of Investigation (C.B.I.) is hereby directed to make a preliminary enquiry of the matter and report it back to this Court within a period of six months from this date. The matter is adjourned for a period of six months to get the preliminary enquiry report in the meantime with liberty to mention for early hearing. In case enquiry is not completed within the said period, the period may be extended only with the leave of the Court. Subject to availability of such report and the other reports, if any, placed by the Special Officers appointed by this Court, the Court will ascertain the position and pass an appropriate order in connection thereto. If the departmental and criminal proceedings are not completed as yet, the same will also be completed in the meantime and results thereof will be reported back to this Court to take final decision.
However, either for a period of six months or till the time when the Court can be able to get all the reports to finalize the issue, the respondent nos. 4 and 5 will not be allowed to work as Chairman and Chief Executive Officer of NOIDA or Greater NOIDA or Yamuna Expressway Authority or any other authority and they will be withdrawn by the Government and will not be placed in the Western Uttar Pradesh to maintain the secrecy and for independent enquiry. In the meantime, charge of such posts will be taken immediately by the present Principal Secretary, Infrastructure, Industrial Development, Information Technology & Electronics, and Industrial Development Commissioner, Government of Uttar Pradesh, being Chairman of all the authorities with a power to appoint the Chief Executive Officer in consultation with the Government of Uttar Pradesh.
(Justice Amitava Lala, ACJ) I agree.
(Justice Pradeep Kumar Singh Baghel) Dated: 08th November, 2012.
SKT/-
Hon'ble Amitava Lala, Acting Chief Justice.
Hon'ble Pradeep Kumar Singh Baghel, J.
Under the authority of the Hon'ble Acting Chief Justice, additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered in the Court upon notice to the parties.
The matter is adjourned for a period of six months with liberty to mention for early hearing.
Dt./- 08.11.2012.
SKT/-
For judgement and order, see order of the date passed on the separate sheets (eleven pages).
Dt./-08.11.2012.
SKT/-
Order On:
Civil Misc. Recall Application No. 315426 of 2012 IN Civil Misc. (PIL) Writ Petition No. 30825 of 2012.
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Hon'ble Amitava Lala, Acting Chief Justice.
Hon'ble Pradeep Kumar Singh Baghel, J.
In view of the order of the date passed in the present writ petition on the order-sheet, this recall application is rejected, however, without imposing any cost.
Dt./- 08.11.2012.
SKT/-
For order, see order of the date passed on the order sheet.
Dt./-08.11.2012.
SKT/-