The Honourable the Chief Justice Heard Mr. Su. Srinivasan, learned counsel in support of this writ petition. Mr. K. Chandrasekaran, Special Public Prosecutor for C.B.I. Cases appears for the first respondent and Mr. G. Masilamani, learned senior counsel appears along with Mr. K. Ramakrishna Reddy for the second respondent.
2. The petitioner is an advocate practising at Salem. He claims to be a member of the Indian National Congress, a political party and also claims to be the former General Secretary of the party in Salem District.
3. The second respondent to the writ petition is the President of the Tamil Nadu Unit of the Indian National Congress. He was a Member of the Rajya Sabha from 1984-1990 and then of the Lok Sabha from 1991-1996. During 1993-1996, he was a Minister of State in the Central Government for the Ministry of Social Welfare. He was subsequently elected to the Parliament during the term 2004-2009. In 2009, he contested the election, wherein he was defeated.
4. The first respondent to the writ petition is the Deputy Director, Anti Corruption Wing of the Central Bureau of Investigation.
5. The petitioner filed a complaint to the then Director of C.B.I. at Chennai on 22.4.2004, just before the Parliamentary Elections of 2004. In that complaint, he pointed out that the second respondent was acquiring huge properties and was registering them in the names of his wife, son, sister, father-in-law, his associates and was also running granite industry and educational institutions. He submitted that before becoming a Minister, for some time, the second respondent's income was very marginal, but by misusing the influence and authority, he had accumulated properties worth several crores of rupees. Further, it was submitted in that complaint that acquiring properties disproportionate to one's income, not paying proper income tax and registering the documents by undervaluing the market value were punishable offences. The prayer in this complaint was as follows :-
"Therefore, I kindly request you to take action against Mr. Thangabalu and recommend to disqualify and to reject his nomination paper."
Along with this complaint, documents running to some 410 pages were produced.
6. The petitioner did not receive any reply from the first respondent and the second respondent was not disqualified from contesting the elections. He contested the election and he won therein.
7. Thereafter, just before the Parliamentary Elections of 2009, the petitioner wrote another letter to the Deputy Director, C.B.I., Chennai on 13.2.2009. This time, he sought some information under the Right to Information Act, 2005. The letter written by him is as follows :-
Note : Since the information I am seeking is in the nature of public interest, Anti Corruption & Revenue loss to Government, the information be furnished within 48 hours of my request. Rs.10/- court fee is affixed herewith."
The Superintendent of Police and Public Information Officer of the Anti Corruption Wing of C.B.I. replied to the petitioner on the following lines :-
" CENTRAL BUREAU OF INVESTIGATION ANTI CORRUPTION WING SHASTHRI BHAVAN, III FLOOR, CHENNAI-600 006 No.C6/RT1/019/2009/94 Dt.27.02.2009 To Mr. V.K. Palanivelu, B.A., B.L., Former District General Secretary, Mallur Post, Salem District-632 203.
Sir, Explanation : Your appln. dt. 13.2.2009 made under under Right to Information Act, 2005.
- - -
The following answers are given to the queries you have raised :
1. Since you have submitted enough documents, on examining your complaint dated 22.4.2004, it was decided that we cannot proceed further.
2. It also revealed that the documents that you have sent along with the complaint are the documents of properties that were purchased prior to 1993, lieu before he became Union Minister or Member of Parliament, therefore, CBI cannot proceed against him.
3. We have no power to make such recommendation.
4. You have sought us only to take action. If you want to appeal against this communication, you may appeal to Mr. P. Kandasami, Deputy Director, CBI Anti Corruption Wing, Shasthri Bhavan, III Floor, Chennai-6 within 30 days in an appropriate manner.
Thanking you, Sd/-
(C. Murugan) Superintendent of Police & Public Information Officer, Anti Corruption Wing, Chennai."
8. The petitioner thereafter wrote to the first respondent on 6.3.2009 pointing out that the second respondent had accumulated huge wealth disproportionate to his known source of income. At the end of that letter, he made the following request :-
"Therefore, it is requested to take my complaint on file and you may please institute an enquiry into the amassing of huge wealth and assets disproportionate to the known source of income of Mr. K.V. Thangabalu and his family members as the assets are admittedly accumulated when he was / is a public servant."
Petitioner thereafter filed the present writ petition on 15.4.2009 seeking a writ of mandamus against the first respondent to register the petitioner's complaint dated 6.3.2009 on file and to enquire into the charges levelled against the second respondent and his family members and further proceed in accordance with law and thus render justice.
9. The second respondent filed his counter affidavit and pointed out that the petitioner is set up by unsuccessful political contenders. According to him, the first complaint was made just before the Parliamentary Elections of 2004 with an attempt to defame him. Thereafter, nothing was done for five years and again, just before the Elections of 2009, the second representation is made to the C.B.I. He pointed out that he comes from an agricultural family having regular agricultural income and with the said income, he entered into granite business in patta lands between 1975 and 1980. He was also doing private contract works and earning considerable income from all these sources. He is an income tax assessee and all the investments made by him and the properties purchased by him are duly accounted for. In paragraph 18 of the counter, the second respondent submitted that the petitioner was duty bound to disclose the source of the income tax documents produced concerning him and his family members before placing reliance on them. He also wondered as to how the Notary has certified those documents as true copies and how he could have seen the original income tax records which are in the possession of the Income Tax Department. He submitted that this is a petition filed with a mala fide intention and prays that the same be dismissed.
10. As far as the first respondent is concerned, it is submitted that in view of
Section 6 of the Delhi Special Police Establishment Act, 1946, the Delhi Special Police Establishment shall not exercise powers and jurisdiction in any area in the State of Tamil Nadu without the consent of the respective State Government. It is further stated in this affidavit as follows :-
"It is respectfully submitted that State Government of Tamil Nadu by its letter dated 9th April 1989, stipulated three conditions while extending powers and jurisdictions of Special Police Establishment (CBI) for investigation of the offences in the State. The conditions are as follows:
(i) Cases involving either Central Government servants or officers belonging to Public Sector Undertakings under the Central Government; or
(ii) Cases involving financial or other interests of the Central Government or Public Sector Undertakings under the Central Government; or
(iii) Cases under the Central Act with the enforcement of which the Central Government is concerned.
It is respectfully submitted that the Member of Parliament does not fall under any of the above three categories because he cannot be treated as Central Government Servant / Officers belonging to Public Sector Undertakings and that the case of disproportionate assets does not fall under the IInd category.
It is respectfully submitted that the case also does not fall under the last category because Prevention of Corruption Act, 1988 comes under the concurrent list of the Constitution on which both the State and the Central Government have powers to legislate. Further, the Act is not a Central Act with the enforcement of which only the Central Government is concerned."
11. The first respondent had submitted that he could not proceed against the second respondent because he was a Member of Parliament and he could not, therefore, fall in one of the three categories wherein the State of Tamil Nadu had permitted investigation by C.B.I.
12. With respect to that submission of the first respondent, the petitioner relied upon the judgment of the Apex Court in the case of P.V. Narasimha Rao vs. State (CBI/SPE) reported in A.I.R. 1998 S.C. 2120. Learned counsel for the petitioner submitted that a public servant is defined under
Section 2(c)(viii) of the Prevention of Corruption Act, 1988 to mean any person who holds an office by virtue of which he is authorised or required to perform any public duty. He pointed out that in the aforesaid judgment, Members of Parliament were held to be public servants within the aforesaid definition. Learned counsel further submitted that the present case was one where the possession of assets disproportionate to one's income was under consideration and relied upon the judgment of the Apex Court in the case of Vishwanath Chaturvedi vs. Union of India reported in (2007) 4 S.C.C. 380, where the Apex Court had directed the C.B.I. to enquire into the alleged acquisition of wealth by respondents 2 to 5 therein, and whether the allegations made out by the petitioner with regard to the possession of assets disproportionate to the known sources of income of respondents 2 to 5 was correct or not. According to the learned counsel for the petitioner, this was a fit case for a similar direction.
13. As against these submissions of the petitioners, Mr.K. Chandrasekaran, learned Special Public Prosecutor for C.B.I. Cases appearing on behalf of the first respondent pointed out that the reply of the first respondent dated 27.2.2009 which has been quoted earlier is quite clear. According to him, with regard to Query No.1 raised by the petitioner in his letter dated 13.2.2009, the C.B.I. had replied that since he had submitted enough documents, on examining his complaint dated 22.2.2004, it was decided that the C.B.I. cannot proceed in the matter any further. In Query No.4, the petitioner had asked that if C.B.I. did not have the power to recommend (disqualification of the second respondent from contesting elections), why they had not given him suitable advise to take appropriate action at his end. To this query, the C.B.I. had replied that the petitioner had asked the C.B.I. to take only an action and it was stated, "If you want to appeal against this communication, you may appeal to Mr. P. Kandasami, Deputy Director, CBI Anti Corruption Wing, Shasthri Bhavan, III Floor, Chennai-6 within 30 days in an appropriate manner". The petitioner had sent such a representation on 6.3.2009 and without waiting for any further reply thereto, had rushed to this Court.
14. Mr. G. Masilamani, learned senior counsel appearing for the second respondent, on the other hand, submitted that the C.B.I. was constituted under the Delhi Special Police Establishment Act, 1946. Under Section 2 thereof, the Delhi Special Police Establishment was constituted as a special police force for the investigation in any Union Territory of offences notified under
Section 3 of that Act. As far as the State Governments are concerned, Section 6 of the Act provided as follows :-
"6. Consent for State Government to exercise of powers and jurisdiction Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or Railway area, without the consent of the Government of that State."
The petitioner wanted an action against the second respondent under the Prevention of Corruption Act. Under
Section 17 of the Prevention of Corruption Act, the persons who are authorised to investigate have been notified. They are as follows :-
"(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of
section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank."
Learned senior counsel, therefore, submitted that whereas on the one hand the C.B.I. did not have the jurisdiction in any area in the State without the consent of the Government of the State, the appropriate authority to investigate were the officers of the State Police, as laid down in
Section 17. Petitioner had not approached any of those authorities.
15. Mr. G. Masilamani further submitted that the second respondent had declared his income all throughout by filing returns. He had disclosed his source of income. The intention of the petitioner was only to harass the second respondent on the eve of the elections and that is why in 2004, he filed one complaint wherein the prayer was to disqualify the second respondent as a candidate. However, no order was passed thereon and the second respondent was elected, and the petitioner did not do anything for five years. Now again, another complaint is filed just before the elections in 2009. Learned senior counsel submitted that assuming that the second respondent was a public servant, no case had been made out on merits for taking any action against the second respondent.
16. As far as the judgment in Vishwanath Chaturvedi's case (supra) is concerned, that was a matter where the Apex Court exercised its powers under
Article 32 of the Constitution since very serious allegations were made against respondents 2 to 5 therein. The second respondent in that case was the Chief minister of a State and details of the properties and the wealth amassed by him and his family members going into hundreds of crores were specifically quoted in paragraph 7 of the rejoinder filed by the petitioner therein, which are quoted in paragraph 10 of the judgment of the Apex Court. The judgment, in different paragraphs, records the allegations with regard to the disproportionate assets. Mr. G. Masilamani submits that the petitioner in that matter was following the matter scrupulously and it was in such circumstances that the Supreme Court has exercised its powers under
Article 32 of the Constitution and it also had the authority to do complete justice under
Article 142 of the Constitution. Those yardsticks cannot be applied in the present case. He drew our attention to the judgment of the Apex Court in the case of Dr. B. Singh vs. Union of India reported in A.I.R. 2000 S.C. 1923. What the Court has observed with respect to public interest litigation in that matter is quite instructive for our purpose. To quote the minimum of these observations, the relevant paragraphs are as follows :-
"13. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking."
"17. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else.
... Though in Duryodhan Sahu (Dr) v. Jitendra Kumar Mishra 1998 A.I.R. S.C.C. 3467, this Court held that in service matters PILs should not be entertained, the inflow of the so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. This tendency is being slowly permitted to percolate for setting in motion criminal law jurisdiction, often unjustifiably just for gaining publicity and giving adverse publicity to their opponents. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them.
18. In S.P. Gupta v. Union of India, (1981) Supp. S.C.C. 87, it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the court under the guise of a public interest litigant. The following note of caution was given: (SCC p.219, para 24) 24. But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective".
17. We have noted the submissions of the learned counsel appearing for all the parties. From what is narrated above, it is very clear that the petitioner's prayer in his first complaint to the C.B.I. made in the year 2004 was to disqualify the second respondent from contesting the elections. No action was taken on that complaint and the petitioner did not take any steps thereafter for nearly five years. He filed another representation under the Right to Information Act, just before the elections, on 13.4.2009 and in that also, he sought to know what happened to his representation/complaint dated 22.4.2004. He further wanted to know if the C.B.I. did not have the power to disqualify the second respondent from contesting the elections, he should be given suitable advice. The C.B.I. replied to him on 27.2.2009 stating that they had examined the documents which the petitioner had submitted and it was decided that they could not proceed further. Thereafter, he was also informed that from the documents, it was clear that the properties were purchased prior to 1993, before the second respondent became a Minister and therefore, on merits also, the C.B.I. could not proceed against him. With respect to petitioner's Query No.3 regarding disqualification of the second respondent from contesting elections, he was informed that they did not have the power to make such a recommendation and with respect to Query No.4, the petitioner was informed that he had only asked them to take action on his complaint and if he wanted to appeal against this communication, he may appeal to the Deputy Director. Thereafter, he has filed a representation on 6.3.2009 wherein he has made a prayer that his complaint may be taken on file and an enquiry be instituted into the alleged amassing of huge wealth and assets by the second respondent. Without waiting for further response from the C.B.I., he has filed this writ petition.
18. The second respondent, in his counter, has explained his source of income and submitted that he does not possess any wealth or assets disproportionate to his income and that he has filed his income tax returns regularly. He could be considered to be a public servant within the meaning of the definition under the Prevention of Corruption Act, as held by the Apex Court in P.V. Narasimha Rao's case (supra). However, on the documents which were submitted by the petitioner, the C.B.I. had informed the petitioner by their communication dated 27.2.2009 that on examining those documents, they could not proceed any further. The petitioner had made a further representation on 6.3.2009 and C.B.I. was expected to respond to the same in the normal course.
19. The petitioner has not disclosed in his petition as to how he got the official documents such as those from the Income Tax Department. He was seeking to set in motion the criminal law jurisprudence by filing a public interest litigation without first approaching the authorities of the State Police, who are competent to take action under
Section 17 of the Prevention of Corruption Act. The manner in which the petitioner has followed his grievance clearly shows that he was motivated by political consideration. This is so because he filed the first complaint before the elections of 2004 and took no steps thereafter for five years. The prayer in the first complaint to the C.B.I. was to disqualify the second respondent from contesting the elections. In February 2009, he sought information from the C.B.I. under the Right to Information Act as to whether they had any such power to disqualify a candidate and also as to what happened to his complaint of the year 2004. This was just before the Parliamentary Elections which were notified to be held in March, 2009. That apart, from the tenor of his first complaint as well as the query raised under the Right to Information Act, it is clear that the intention of the petitioner was to prevent the second respondent from contesting the Parliamentary Elections.
20. In any case, if his intention was that the second respondent should be booked under the Prevention of Corruption Act, he did not follow the remedy which was otherwise available to him.
21. The dicta of the observations of the Apex Court in the case of Dr. B. Singh's case (supra) fully apply to the present case.
22. As stated above, the petitioner has given his further representation to the C.B.I. on 6.3.2009 and the C.B.I. is expected to respond to the same in the normal course. Without waiting for the response from the C.B.I., the present writ petition is filed with a prayer, as stated above, to register the petitioner's complaint.
23. For the reasons stated above, no ground is made out to issue any such direction. The writ petition fails and is, therefore, dismissed, though we are refraining in making any order as to costs.
(H.L.G., C.J.) (D.M., J.) ab 20th August , 2009 Index : Yes / No Website : Yes / No To The Deputy Director, Anti Corruption Wing, Central Bureau of Investigation, Shastri Bhavan, III Floor, Chennai-6 The Honourable The Chief Justice and D. Murugesan, J. ab Writ Petition No.6810 of 2009 20..08..2009