JUDGMENT R.K. Dash. J.
1. In the instant writ petition filed under Article 226 of the Constitution of India, the petitioner has prayed for quashing the impugned citation. Annexure-1 whereby he has been asked to pay a sum of Rs. 2.87.67,021.00 to the State.
2. Shortly stated, the petitioner's case is that plot No. 103 measuring approximately 66.795 sq. ft. situated in Civil Lines, district Gorakhpur was nazul land and over the said plot there exists a bunglow bearing No. 7. A case in respect of the said plot was created by the Slate Government in favour of late Madan Lal Tekriwal on 1.11.1954, with retrospective effect from 1.5.1945, for a period of 30 years with right of renewal for further period of two terms of 30 years each with a rider that Government may refuse to renew the lease in case of violation of the terms and conditions thereof. One J.R. Tamta was residing as tenant in a portion of the aforesaid plot covering an area of 43.000 sq. ft. After he vacated the tenanted premises, the bunglow and the land appurtenant to it was allotted to the petitioner under U. P. Act 13 of 1972 and was put in possession. Certain litigations were started both by the petitioner as well as heirs and legal representatives of the original lessee. Allotment made in favour of the petitioner was cancelled, challenging which he filed Writ Petition No. 11110 of 1984 and ultimately, it was allowed. Review application filed by the landlord was also dismissed. They moved special leave petition before the Supreme Court and the same was also dismissed.
3. The petitioner applied for conversion of the land in his possession into freehold land. His prayer was accepted by the District Magistrate, Gorakhpur and he was asked to pay a sum of Rs. 44,03,200.00 towards conversion charges. He deposited the amount as demanded whereafter the District Magistrate executed the sale deed. When the matter stood thus, citation, Annexure-1 was served asking him for payment of the aforesaid amount towards value of the land and additional stamp duty. It is urged that before issuance of the said citation neither any notice was served upon him by the State Government or the District Magistrate nor any proceeding was initiated to determine the value of the land in question. The citation was issued without there being any basis and no communication whatsoever was made prior to asking the petitioner to make payment of such huge amount.
4. The further case of the petitioner is that he received a notice dated 6.9.2001 from the Secretary, Lokayukta, Uttar Pradesh, accompanied with an affidavit and copy of a complaint. The name of the complainant with particulars were, however, not disclosed. The allegation in the complaint was that the petitioner misused his power as a Minister and by exercising influence over the District Magistrate and the Additional District Magistrate obtained conversion order in respect of the nazul land in question. In obedience to the notice, he submitted reply contending inter alia that such a complaint was not maintainable since the name of the complainant was not disclosed. Besides challenging the maintainability of the proceeding initiated by the Lokayukta, he denied the allegations made in the complaint. He also sought permission to appear personally or through authorised representative to have his say. After submission of reply, he received no communication from the Lokayukta. Later on, to his utter surprise he came to know from a news item published in the Times of India, Lucknow Edition, dated 4.4.2002 that Lokayukta has indicted him. He then requested the Lokayukta to supply him copy of the order/report as referred to in the news item. His prayer was not accepted and he was intimated that it was not possible to supply him the copy of the report. In such background facts, it is urged that the order passed by Lokayukta is illegal, arbitrary and without jurisdiction and, therefore, on the basis thereof, no action could have been taken against him.
5. Certain other averments have been made in the writ petition which run into several paragraphs. It is not necessary to refer the same in detail since we are not going to decide as to whether the demand as made under Annexure-1 is based on the actual value of the land in question ; the reason being that petitioner's main challenge is to legality and validity of the citation, Annexure-1 which emanates from Lokayukta order.
6. In response to the notice, respondent Nos. 1 to 3 filed their return. In substance their case is that the petitioner claiming as a tenant moved the authority for conversion of nazul land in question to freehold land. In terms of prevailing Government order, he was required to pay conversion charges at the current circle rate of Rs. 464.68 per sq. ft. and not Rs. 256 as per the 1991 Government order. But since he was a Cabinet Minister, he exerted pressure upon the officials and by misusing his authority got the land undervalued and obtained sale deed on depositing certain sum which is much less than the circle rate. On a complaint being made, Lokayukta in exercise of power conferred by the U. P. Lokayukta and Up-Lokayukta Act, 1975 (for short 'the Act') made investigation after giving due notice to the petitioner and held that the petitioner by abusing his status as a Minister obtained the sale deed at a grossly undervalued price and accordingly, reported the State Government for compliance of his order. Pursuant thereto, criminal prosecution was launched and simultaneously, citation was issued to the petitioner asking him to make the payment of deficit conversion charges and stamp duty thereon. It is further stated that the price of the land which the petitioner is liable to pay as mentioned in the citation was assessed in terms of Government order dated 1.12.1998, besides the compoundable interest for different periods. Some other averments have been made in the counter-affidavit running to several pages, reference of which is not necessary for deciding the question involved in the case. To repeat with, respondents' case in nutshell is that the petitioner while holding office as Cabinet Minister exercised influence over the District Magistrate and got the price of the land undervalued and obtained the sale deed in his name and thereby, caused huge loss to the State exchequer. As to the action of the Lokayukta, it is urged that the inquiry was conducted after giving notice to the petitioner and final order was passed in accordance with law. In the circumstances therefore, issuance of citation by the Tehsildar cannot be faulted with and reliefs claimed by the petitioner cannot be granted in exercise of extraordinary writ jurisdiction.
7. It is contended by the learned counsel for the petitioner that the amount as mentioned in the notice, Annexure-1 cannot be recovered as arrear of land revenue since there was no decree or order passed by any competent authority determining the liability of the petitioner. For conversion of nazul land in question to freehold land, prevailing circle rate was taken into account, whereafter on payment being made by the petitioner, sale deed was executed by the Collector on behalf of the State Government and therefore, the State Government is estopped to contend that the land was undervalued in order to show favour to the petitioner and sale deed was executed and thereby, huge loss was caused to the State exchequer. He went on to argue that the order of Lokayukta on the basis of which impugned citation, Annexure-1 was issued is illegal and without jurisdiction being contrary to the statutory provision of the Act, Elaborating the submission, he urged that under the Act, the authority concerned upon conclusion of investigation has the power to recommend the Government for taking appropriate action in accordance with law, but it does not have the authority to ask the State Government to recover the amount as mentioned in the citation as arrear of land revenue since it is not within its competence to determine the liability or otherwise of the petitioner. Further submission was made that the intent and purpose of having the said Act is to conduct a fact finding inquiry by the Lokayukta with regard to the allegations made against the Ministers, Legislators and other public servants complaining about any corruption resorted to by them by misuse of their power. The Act, however, does not provide any full-fledged inquiry/investigation in presence of both the parties by giving due opportunity of hearing. Thus, the inquiry/investigation being ex parte one, the order passed by the authority concerned cannot be straightway put to execution. Therefore, no recovery of the amount as mentioned in the impugned citation, Annexure-1 pursuant to the order of the Lokayukta can legally be made by the Tehsildar, respondent No. 2 in exercise of power under the U. P. Public Moneys (Recovery of Dues) Act, 1972.
8. Per contra, learned A.G.A. argued with vehemence that the petitioner while functioning as a Cabinet Minister exercised undue influence and exerted pressure on the district administration to determine the value of the nazul land in question at a low rate in order to gain undue benefit. According to him, circle rate of the year 1991 was wrongly applied overlooking the Government order dated 1.12.1998 and thereby, huge loss was caused to the State exchequer. He further submitted that a complaint was made to the Lokayukta who having served notice upon the petitioner investigated into the allegations and finding the allegations to be true that huge loss to the extent of rupees two crores and odd was caused to the State, directed the State to recover the same and simultaneously, to proceed against the petitioner and other officials in accordance with law. The report of the Lokayukta and consequent direction issued to him being in terms of the provisions of the Act, the writ court should be slow to interfere with the State's action which has been initiated for realisation of the amount as mentioned in the impugned citation.
9. From the submissions made by the counsel appearing for the parties it appears that impugned citation, Annexure-1 was issued to the petitioner asking him to make payment of rupees two crores and odd towards the value of the nazul land in question and deficit stamp duty in compliance of Lokayukta's order. The respondents though referred to the said order of the Lokayukta in their counter-affidavit that the petitioner acquired the property in question by abusing his status as a Cabinet Minister, they did not choose to file the same for court's scrutiny. However, after conclusion of argument, learned standing counsel in compliance of Court's direction filed copy of the said order.
10. At the outset, we would like to observe that there was no determination by any competent authority as to whether the nazul land in question in respect of which conversion charges were paid and sale deed was executed in favour of the petitioner was properly valued in terms of prevailing Government order. So, it is not within the scope and ambit of this Court in present proceeding to determine the said question and, therefore, we will confine our findings as to whether the amount as mentioned in the impugned citation, Annexure-1 is recoverable in compliance of the order/direction of the Lokayukta passed under the Act. From the copy of the order of the Lokayukta produced before us, it appears that after a preliminary inquiry to the complaint filed by one Saroj Ranjan Shukla, a detailed investigation was made. The allegation of the complaint was that the disputed nazul land appertaining plot No, 103 situated in Cantt. area of Gorakhpur is a commercial land ; its distance from the main road being within 50 metres and so, price thereof should have been fixed at Rs. 5,500 per sq. metre as conversion charges. But the district authorities undervalued it in order to show favour to the petitioner and thereby, caused loss to the tune of Rs. 96,65,540 to the State. In support of such averment, he submitted a map for perusal of the Lokayukta. On being noticed, the petitioner and other officials filed reply denying the allegations. Besides, the District Magistrate in his reply has urged that in view of the report of the Additional District Magistrate that the land in question adjoins a sub-lane, circle rate was fixed at Rs. 256 per sq. ft. The Lokayukta called for certain circulars and orders from the District Magistrate, Gorakhpur and having made reference to them and the U. P. Stamp Rules, 1997 and taking into account the allegations made in the complaint, reply of the petitioner and the officials, the Lokayukta came to the conclusion that the concerned officials overlooking the relevant circular/orders as to the circle rate of nazul land, on extraneous consideration undervalued the land in order to show undue favour to the petitioner and thereby, caused loss to the tune of Rs. 96,65,540 to the State's revenue and accordingly, directed to recover the same from the petitioner as arrear of land revenue. It may be stated, the petitioner has emphatically pleaded that while serving notice upon him along with copy of the complaint, copies of the documents furnished by the complainant were not supplied to him. It is also pleaded that though he asked for personal hearing or through his authorised representative, no permission was, however, accorded. According to him, the investigation was conducted ex parte. Needless to mention that it is fundamental that in judicial, quasi-Judicial or administrative action, the principle of 'audi alteram partem' should be followed and no one should be condemned unheard is the basic principle of law.
11. In the case on hand, the Lokayukta recorded the findings against the petitioner that he by exerting pressure upon the district authorities got the nazul land undervalued and obtained sale deed. This finding was recorded without affording him any opportunity of hearing except serving a copy of the complaint upon him asking for his comments on such complaint. A bare reading of the relevant provisions of the Act shows that power and function of the Lokayukta and Up-Lokayukta is to hold a fact finding inquiry and upon conclusion thereof to recommend to the public servant/competent authority to remove/redress injustice or undue hardship in the manner specified in the report. The Act does not envisage that after issuance of notice, the person complained against has right to participate in the inquiry and assail the allegations made against him by adducing evidence. In the present case, the complainant, as it appears from the copy of order of the Lokayukta, was a stranger. Upon receipt of the complaint, the Lokayukta, it is stated, held a preliminary inquiry and thereafter, full-fledged investigation as provided under Section 10 of the Act. For better appreciation, the aforesaid section is reproduced hereunder :
"Procedure in respect of investigations.--(1) Whether 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.
(2) Every such investigation shall be conducted in private and in particular, the identity of the complainant and of the public servant affected by the investigation shall not be disclosed to the public or the press whether before, during or after the investigation :
Provided that, the Lokayukta or an Up-Lokayukta may conduct any investigation relating to a matter of definite public importance in public, if he, for reasons to be recorded in writing, thinks fit to do so.
(3) Save as aforesaid, the procedure for conducting any such investigation shall be such as the Lokayukta or, as the case may be, the Up-Lokayukta considers appropriate in the circumstances of the case.
(4) The Lokayukta or an Up-Lokayukta may, in his discretion, refuse to investigate or cease 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 investigating 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 therefore and communicate the same to the complainant and the public servant concerned.
(6) The conduct of an investigation under this Act in respect of any action shall not affect such action, or any power or duty of any public servant to take further action with respect to any matter subject to the investigation."
12. Section 11 envisages the procedure for taking evidence in course of preliminary inquiry and investigation. It is provided that for the purpose of preliminary inquiry/ investigation, the Lokayukta and Up-Lokayukta shall have all powers of civil court in respect of summoning and enforcing the attendance of any person and examining him on oath ; requiring the discovery and production of any document ; receiving evidence on affidavits ; requisitioning any public record or copy thereof from any Court or office ; issuing commission for the examination of witnesses or documents. The Act docs not provide that all these shall be done in presence of the person complained against and he shall be given an opportunity to controvert the same. So either during preliminary inquiry or investigation, the aggrieved public servant has no right of audience and whatever inquiry/Investigation is made is an ex pane one. Therefore, the intention of the Legislature in not providing any provision for giving an opportunity of hearing during inquiry or investigation is that function of the Lokayukta and Up-Lokayukta is to hold a fact finding inquiry, on conclusion whereof they are to submit report recommending for taking appropriate action in accordance with law. In that view of the matter, the findings recorded by the Lokayukta or Up-Lokayukta being not final and conclusive and without there being detailed inquiry after affording opportunity of hearing to the aggrieved person, the report of the Lokayukta and Up-Lokayukta cannot straightaway put to execution. In the present case, as has been stated earlier, on the basis of the Lokayukta's report impugned citation, Annexure-1 was issued to the petitioner requiring him to make payment of such huge amount to the tune of rupees two crores and odd without there being any further determination by any competent authority as to whether the nazul land in question was undervalued or not. Another interesting feature of the case is that in the opinion of the Lokayukta, the petitioner is liable to pay Rs. 96.65.540 towards value of the land, whereas in the citation, Annexure-1 petitioner has been asked to pay rupees two crores and odd. In the counter-affidavit filed by the respondents, this discrepancy has not been reconciled and it has not been explained on what basis calculation as to valuation of the land was made when in the opinion of the Lokayukta the value is Rs. 96,65.510. Added to that, the amount as mentioned in the citation. Annexure-1 is also not legally recoverable as arrcar of land revenue under the U. P. Public Moneys [Recovery of Dues) Act, 1972. So, the impugned citation issued by the Tehsildar, respondent No. 2 for realisation of such huge amount being without jurisdiction should be set at naught.
13. In view of discussions made above, the writ petition is allowed and impugned citation, Annexure-1 issued by the Tehsildar, respondent No. 2 is quashed.
14. In the circumstances, there shall be no order as to costs.