Full Text
HIGH COURT OF DELHI
Date of Decision: 18th January, 2023
MUNICIPAL CORPORATION OF DELHI & ORS...... Petitioners
Through: Mr. Sandeep Sethi & Mr. Rajshekhar Rao, Sr. Advocates, with Mr. Sanjay Vashishttha and MR. Ajjay Arora, Standing Counsels for MCD with Mr. Kapil Dutta, Mr. Anuj Bhargava and
Mr. Rahul Kumar, Advocates (M- 9999753811, 9811160827)
Through: Mr. Apoorv Kurup and Ms. Swati Bhardwaj, Advocates for R-1.
(M:8800332253).
Mr. Ripu Daman Bhardwaj, SPP with Mr. C.P. Ojha Advocate.
(M:9818030700).
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present petition has been preferred by the Municipal Corporation of Delhi along with three officials seeking setting aside/ quashing of the impugned order dated 28th November, 2022 passed by the Respondent- Lokpal of India. By way of the impugned order, the Respondent has directed investigation in respect of unauthorized construction in South Delhi during January, 2020 to May, 2021 by the CBI under section 20(3)(a) of the Lokpal & Lokayuktas Act, 2013 (hereinafter ‘Act’).
3. The case of the Petitioners is that in terms of the impugned order, the Lokpal has directed an omnibus investigation by the CBI against public servants belonging to MCD and other agencies responsible for allowing illegal constructions in South Delhi area. The operative part of the impugned order reads as under:- “The learned Advocate has vigorously pleaded the case of the respondent public servants (Respondent No.1, 2 and 3) arguing that they are in no way accountable/responsible for illegal construction within their jurisdiction. He has also pleaded that apart from MCD, several other authorities like Delhi Police, DJB, BSES and Sub-Registrar offices have a role to play in ensuring that illegal construction does not take place. From the Status Report received from MCD through CVC as also from the personal hearing conducted by this Bench so far, the precise role of the respondent public servants in the unauthorized construction in South Delhi area is not forthcoming. However, it goes without saying that illegal construction of properties has taken place on a massive scale in South Delhi area during the relevant periods. By their own admission, MCD has informed that 1141 properties were booked for unauthorized construction in the area. They have also informed that they have written to various other agencies for taking appropriate action in these cases. During the course of personal hearing, it was specifically asked what action was taken by other agencies on the basis of letters written to them by the MCD. The respondent public servants were clueless on this and submitted that they have no information about action taken by other agencies on their letters. It, therefore, appears that the letters were written by the MCD officers in a routine manner and no follow-up action was taken to ascertain whether any preventive or punitive or punitive action has been taken by other agencies. The role played by other agencies and their accountability is also not forthcoming either from the Status Report or from the proceedings during the course of personal hearing conducted in this case. The only undisputed fact is that illegal construction has been going on unabated in South Delhi area on a massive scale. It is, therefore, in the fitness of things that public servants belonging to MCD and other agencies responsible for allowing illegal construction in South Delhi commission indulged in by them. We, therefore direct that detailed investigation in the cases of unauthorized construction in South Delhi area during the period for January, 2020 to May, 2021 may be conducted by the CBI under Section 20(3)(a) of the Lokpal & Lokayuktas Act, 2013. We also direct that the investigation may be conducted as expeditiously as possible and may be completed within a period of six months i.e. by 31.05.2023. We also direct under Section 25(3) of the Act that the Investigation Officer (IO) entrusted with the investigation of this case by the CBI may not be transferred without the approval of Lokpal of India.”
4. The matter was first listed before this Court on 23rd December, 2022. On the said date, intimation was directed to be issued to the Lokpal and Mr. Apoorv Kurup, ld. Standing Counsel has appeared on behalf of the Respondent. On 5th January, 2023, certain legal issues were raised by the learned Senior Counsels appearing for the Petitioners and the matter was adjourned to 9th January, 2023 on which date, the following order was passed:
5. Thereafter, on 17th January, 2023, the original file of the Lokpal consisting of the CVC report was produced and the Court has perused the same.
6. Various legal issues have been raised by Mr. Sethi and Mr. Rao learned Senior Counsel for the Petitioners. The first submission is that as per Section 14 of the Act prior approval of the concerned State Government would be required prior to any jurisdiction being exercised by the Lokpal in respect of such officials who are serving in any Corporation or Board. The second submission of the Petitioners is that the complaint, which is the genesis of the proceedings before the Lokpal, is a two pages complaint. It was in general related to an RTI query which was raised by the complainant with the SDMC. Dissatisfied with the response given to the RTI application by the SDMC, the complainant approached the Lokpal seeking action. It is pointed out that the complaint in question was not in proper format as per the Lokpal (Complaint) Rules, 2020. Reference is made by the learned Senior Counsel to Notice dated 24th August, 2022 issued in pursuance to a decision taken by the Full Bench of Lokpal that no action under section 20 would be taken if the complaint is not filed in prescribed form. Lastly, it is his submission that the impugned order does not disclose any reasoning as to why an investigation by the CBI is being directed.
7. On behalf of Lokpal, Mr. Kurup, Learned Standing Counsel submits that the Lokpal had, upon receipt of the complaint, transmitted the matter to the CVC to receive a report from the SDMC vide order dated 25th April,
2022. The Report was received, in the form of a covering letter from the CVC, forwarding a Report prepared by the MCD’s Vigilance Department. It is this Report which was the basis of the impugned order. In any event, notice was also issued to the concerned officials under section 20(3) of the Act. Reply was sought and personal hearing was given. Upon not being satisfied, the investigation under section 20(3) of the Act was directed.
8. Mr. Ripu Daman Bhardwaj, ld. Counsel appearing for the CBI, upon receipt of the notice issued by this Court, submits that no FIR has been registered in the matter as yet.
9. Heard. A perusal of the complaint as also the impugned order shows that the only findings which have been recorded by Lokpal are that there is unauthorised construction in South Delhi and that the precise role of the public servants, against whom the complaint was made, is not forthcoming. The impugned order also takes note of the fact that illegal construction of properties took place on a massive scale in the South Delhi area in the relevant period.
10. Apart from these two observations, there are no other specific findings recorded against any of the officials and there seems to be no other basis for directing investigation against the entire Corporation and all other agencies responsible for allowing illegal construction in an omnibus manner.
11. A perusal of Section 20 of the Act shows that the said provision contemplates three stages of inquiry and investigation. The provision reads as under:
12. For the present purposes, the scheme under Section 20 of the Act can be condensed in the following manner: ● Under Section 20(1)(a) upon receipt of a complaint, if the Lokpal decides to proceed, steps may be taken for conducting a preliminary inquiry by its inquiry wing, or any other agency to ascertain whether there exists a prima facie case for proceeding further in the matter. ● Or in the alternative, under Section 20(1)(b), if the Lokpal is satisfied that there exists a prima facie case, it may order investigation by any agency. However, as per the third Proviso, before ordering an investigation under S.20(1)(b), an explanation has to be called for from the concerned public servants, so as to determine that a prima facie case exists. ● As per Section 20(2), in the case of a preliminary inquiry under Section 20(1), the concerned agency to whom the inquiry has been assigned has to consider the material, information and documents. It has to also seek comments on the allegations made in the complaint form the concerned public servant and the competent authority. It is only thereafter that it has to be submit a report within sixty days to the Lokpal. ● Thereafter, if the Lokpal after giving an opportunity to the concerned public servants is of the view that a case is made out and arrives at a finding that there is a prima facie case it may proceed with actions i.e., investigation, or initiation of departmental proceedings or any other appropriate action by the competent authority, or closure of the proceedings. ● If the proceedings are closed, the Lokpal can even take action under Section 46 against the Complainant. ● Once the report is received under Section 20(6), within the time periods specified, the Lokpal can, under Section 20(7) either grant sanction for prosecution, or filing of charge sheet or direct filing of closure reports or departmental action can be directed.
13. In the present case, a perusal of the record would show that vide order dated 25th April, 2022, passed by the Lokpal, the CVC was merely asked to obtain a report from SDMC. The said order reads: “Perused the Complaint. The complaint dated 30.12.21 is not filed in the proper format as per Rules. Despite written communication from the Secretariat of the Lokpal of India, the complainant has not done the needful. As sufficient time has elapsed, the complainant is being taken up for consideration and passing of an appropriate order. The complainant has alleged that some officials of South Delhi Municipal Corporation are indulged in protecting and facilitating illegal construction in Green Park Area. The Full Bench of Lokpal, having gone through the contents of the complaints, directs that a status report may be obtained from the SDMC through CVC within a period of four weeks from the date of receipt of the Order i.e., on or before 27.05.2022.” The CVC then sought a Report from the Vigilance department of the MCD. Upon received the said report, the CVC merely forwarded the same to the Lokpal. In effect therefore, there has been no enquiry by the CVC at this stage. Insofar as the Lokpal is concerned, it gave an opportunity to the officials to file a reply and after considering the matter, directed the investigation by CBI, vide the impugned order.
14. After perusing the record, hearing submissions and also perusing the original file, this court is of the prima facie opinion that various legal issues including that of the jurisdiction of Lokpal and the legality of the manner in which the Lokpal has proceeded would arise for consideration in the present case.
15. Considering the above issues which have arisen, issue notice to the Respondent. Notice is accepted by Mr. Kurup, ld. Standing Counsel.
16. The Respondent shall place their position on record by way of a counter affidavit within four weeks. Rejoinder, if any, be filed within two weeks thereafter.
17. In the meantime, the CBI shall not proceed with the investigation in terms of the impugned order dated 28th November, 2022.
18. It is, however, clarified that if there are any specific complaints which are received by the Lokpal against any officials of the MCD or against unauthorised construction, the Lokpal would be free to proceed in accordance with law in such matters.
19. It is clarified that this is only a prima facie view at this stage, and shall not be construed as an opinion on merits.
20. List on 25th April, 2023.
21. This matter shall be treated as a part-heard matter.
PRATHIBA M. SINGH JUDGE JANUARY 18, 2023/MR/SK