STRENGTHENING THE INSTITUTION OF LOKAYUKTA IN DELHI

As a public interest organisation committed to promoting probity in public life, Common Cause had been following the indefatigable efforts of Justice Manmohan Sarin, Lokayukta of Delhi, to call to account the elected functionaries of the National Capital Territory for their transgressions. He had not allowed the limitations of jurisdiction and statutory powers, or the lack of an investigation wing, to cramp his style. The doggedness demonstrated by him in pursuing the reported cases of misconduct by Delhi's elected representatives had served to raise the level of public awareness and enhanced the accountability of public servants. It had also given a certain salience to the hitherto dormant and ineffective institution of Lokayukta.

Common Cause was pained by the determined refusal of the competent authorities under the Lokayukta Act to act upon the Lokayukta's considered recommendations in matters involving the misconduct of public functionaries.  Hence, it was considered appropriate to seek judicial intervention to quash such illegal and motivated orders and strengthen the institution of the Lokayukta by apposite administrative measures and amendments in the statute.

It was eventually decided to limit the scope of our PIL to the rejection by the Lt. Governor of the specific recommendations made by the Lokayukta in respect of eight former Municipal Councillors, who had been caught in a sting operation in the act of negotiating bribes for facilitating unauthorized constructions in the Capital. A PIL was filed in the Delhi High Court on May 7, 2013, challenging inter alia the legality of the de novo inquiry conducted by the Lt. Governor after receiving the Lokayukta's report in the matter. Interestingly, the LT. Governor and the Government of Delhi filed a joint counter affidavit questioning the maintainability of the PIL.

During the pendency of the petition, a division bench of the Delhi High Court delivered a judgment upholdingthe power of the competent authority to call for the views of the respondents on the report of the Lokayukta before taking any action in the matter. The Court opined that it was the requirement of natural justice, which is inbuilt in the decision making process of the competent authority that a response on the findings of the Lokayukta be obtained from the public functionary concerned. The respondents seized this opportunity to seek the dismissal of the PIL on the strength of this judgment.

Meanwhile, the Aam Aadmi Party, which had emerged from a mass movement for the enactment of a strong law to establish an institutional framework of effective and independent Lokpal and Lokayuktas, formed its short-lived government in Delhi. We believed that the new government would hardly need any persuasion to review its stand on our petition, which was in perfect accord with its avowed principles and agenda. Hence, we wrote to Shri Somnath Bharti, Minister for Law, urging him to clarify the position of the new government in regard to our prayers. The Law Minister, unfortunately, was too preoccupied to act. Thus, a golden opportunity to undo the harm done to the institution of Lokayukta by the previous government was missed.

The matter is now listed for final hearing on April 30, 2014. We reproduce below excerpts from our petition as well as the letter that we addressed to Shri Somnath Bharti.

Editor

In The High Court of Delhi, Writ Petition (C) No. 2992 Of 2013

In the matter of :

Common Cause: (petitioner)

Versus

Sh. Subhash Jain (Respondent No. 1), Smt. Anita Koli (Respondent No. 2), Smt. Sateshwari Joshi (Respondent No. 3), Smt. Manju Gupta (Respondent No. 4), Smt. Bina Thakuriya (Respondent No. 5), Smt. Jaishree Panwar (Respondent No. 6), Sh. Ravi Prakash Sharma (Respondent No. 7) and Sh. Ajit Singh Tokas (Repondent No. 8), Lieutenant Governor of Delhi (Respondent No. 9), Government of NCT of Delhi (Respondent No. 10) and Police Commissioner Delhi (Respondent No. 11)

TO, THE HON'BLE THE CHIEF JUSTICE AND HIS OTHER COMPANION JUSTICES OF THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI.

2. The source of knowledge of the facts alleged in the Writ Petition is documentation available in the public domain as well as documents obtained through the Right to Information Act from the office of the Hon'ble Lokayukta.

3. The present Petition is for the benefit of all citizens of India since it aims to improve mechanisms for rooting out corruption in public administration through the statutory body of the Lokayukta.

5. The Present Petitioner is a public interest organization of long standing, which has been campaigning for the establishment of a credible institutional framework for combating corruption in public life. It is represented in the present Petition by its Director, Mr. Kamal Jaswal, in 1995, the present Petitioner filed a PIL in the Supreme Court, urging for the establishment of an independent Lokpal at the central level and the reinforcement of the institution of Lokayukta at the state level. Although the PIL has yet to be finally disposed of, it has had significant outcomes, commencing with the unprecedented imposition of a penalty of Rs. 50 lakh on the former Petroleum Minister, Capt. Satish Sharma, for the abuse of his discretionary powers. In August 2008, at the instance of the Bench, the petitioner society filed an additional affidavit, delineating the essential features of the institutions of Lokpal and Lokayukta. Two years later, this blueprint formed the basis of the first draft of the Jan Lokpal Bill, which served as the rallying point for India's biggest popular mobilization for combating corruption.

8. The Present Petition seeks to draw the attention of this Hon'ble Court to the manner in which the institution of the Lokayukta, established under the Delhi Lokayukta and Upalokayukta Act, 1995 (hereinafter, `the Act'), has been effectively undermined on account of disregard by the Competent Authority of the considered recommendations made by the Hon'ble Lokayukta in various cases involving egregious acts of corruption by elected public functionaries. Despite the fact that the reports submitted by the Hon'ble Lokayukta contained prima facie findings of violations of the criminal statutes, including the Prevention of Corruption Act, 1988, no consequential action has been taken by the Competent Authority under the Act to initiate prosecution against the individuals involved. The continued inaction on the part of the Competent Authority amounts to a grave and continuing violation of Articles 14 and 21, which have been interpreted by the Hon'ble Apex Court as guaranteeing to all citizens the right to transparency, fairness and non-arbitrariness in the actions of all state functionaries as well as the right to a corruption free society.

9. The present Petitioner is therefore constrained to approach this Hon'ble Court in exercise of its jurisdiction under Article 226 of the Constitution by way of the present Petition in Public Interest seeking appropriate relief to remedy the continuing violation of the Part III rights of the citizens.

10. On 7.12.2011, the newspaper `Nav Bharat Times' published a news report titled "Sting Operation Ke Baad Parshadonme in Macha Hadkamp". The report contained the findings of a sting operation carried out and subsequently telecast by the news channel IBN-7 bringing to light the involvement of Municipal Councillors in Delhi in negotiations for facilitating illegal and unauthorized constructions for illegal gratification. As part of the sting operation, news reporters and journalists posed as builders who had erected or intended to erect buildings in contravention of applicable rules and regulations. The conversations were captured on video. Transcripts of the conversations were also made.

11. In the garb of builders, the media persons approached the municipal councillors under whose jurisdiction the buildings had or were to be erected fell. During the course of their conversations with the municipal councillors, the journalists offered the elected public officials illegal gratification in the form of monetary consideration to overlook the existing or contemplated irregularities in construction and also to make the necessary arrangements to ensure that the state officials concerned, such as Junior Engineers and Assistant Engineers, were also taken into confidence and bribed so as to not highlight or oppose the proposed irregularity.

12. It is submitted that the Municipal Councillors arrayed as Respondents in the present Public Interest Litigation are public functionaries as functionaries as defined in Section 2(m) of the Act and as such their conduct in the course of discharge of their public duties admittedly can be made subject to the provisions of the Act and the jurisdiction of the office of the Hon'ble Lokayukta established under the auspices of the said Act.

13. Suomotu cognizance was taken by the Hon'ble Lokatyukta on 7.12.2011 of the abovementioned newspaper article as well as the telecast on news channel IBN-7. Notices were issued to the Municipal Councillors concerned, the Editor and City Correspondent of `Nav Bharat Times' as well as the Managing Director and Correspondent of IBN-7. The reporters of Cobra Post, who had been deputed by the channel to carry out the sting operation were directed to produce the original footage/recording of the sting operation.

14. In the proceeding before the Hon'ble Lokayukta, all the parties to whom notice was issued were represented by Legal counsel. The statements of the reporters who had carried out the sting operation were recorded on oath and their identities were kept confidential in accordance with Section 14 of the Delhi Lokayukta and Upalokayukta Act, 1995. A DVD containing the raw original footage of the sting operation was also obtained from the channel and made available to the Hon'ble Lokayukta. Transcripts of the recorded conversation of the meetings and negotiations with the Municipal Councillors were also tendered. The Hon'ble Lokayukta also saw fit to appoint an amicus curiae to assist him in the matter. The cases of the Municipal Councillors were segregated as separate complaint cases were registered and dealt with by way of separate orders.

15. The procedure to be adopted in hearing the cases was determined by consensus after hearing all concerned parties. It was agreed that an agreed transcript of the raw footage would be drawn from the footage and that parties would not question the authenticity of the footage or the transcript. Accordingly, the footage was viewed in the proceedings by the Hon'ble Lokayukta with parties being given the opportunity during the viewings to give inputs on the same.

16. It is the admitted position that the proceedings before the Hon'ble Lokayukta were held in full compliance with the principles of natural justice and keeping in view the letter and spirit of Section 10 of the Act. At no stage of the proceedings did any of the Respondent Municipal Councillors contend that they were in any sense deprived of their right to a full and fair hearing or that they were in any way constrained from presenting their defence in full. Further, as is apparent from the procedure outlined above, all material necessary and relevant to arriving at a conclusion in respect of whether actionable offences had been committed by the Respondent Municipal Councillors was scrutinized in detail by the Hon'ble Lokayukta, with inputs from all parties as well as the learned Amicus Curiae.

17. Upon consideration of the material on record as well as the submissions made by the parties, the Hon'ble Lokayukta addressed the question of whether the impugned conduct fell within the scope of Section 2(b) of the Act. In this context, it may be noted that the term "allegation" in Section 2(b) in relation to a public functionary means by affirmation that such public functionary in capacity as such:

i. has failed to act in accordance with the norms of integrity and conduct which ought to be followed by the public functionaries or the class to which he belongs;

ii. has abused or misused his position to obtain any gain or favour to himself or to any other person or to cause loss or undue harm or hardship to any other person;

iii. was actuated in the discharge of his functions as such public functionary by improper or corrupt motives or personal interest;

iv. is or has at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known resources of income whether such pecuniary resources or property are held by the public functionary personally or by any member of his family or by some other person on his behalf;

18. It is submitted that in each of these cases, the inquiry fell within a narrow compass. The facts in issue were largely admitted as between the parties. In all cases, the Municipal Councillors admitted that the conversation portrayed in the raw footage and transcripts had in fact taken place and only disagreed as to the context in which the impugned conduct had taken place as well as the implications, circumstances and motivations behind the same.

19. After conduct of the inquiry in the manner contemplated in the Act, the Hon'ble Lokayukta, having satisfied himself that the allegations were established, issued separate Reports in the cases of each of the Respondent Municipal Councillors under Section 12(1) of the Act, communicating his findings and recommendations to the Competent Authority (being the Lieutenant Governor of the NCT of Delhi).

20. Aside from finding that the allegations in respect of the impugned conduct of the Municipal Councillors were established upon consideration of the material on record, the Hon'ble Lokayukta also came to the unequivocal conclusion that the said material also disclosed the commission of penal offences under relevant provisions of the Prevention of Corruption Act as well as the Municipal Corporation of Delhi Act. In the majority of the cases, the finding of the Hon'ble Lokayukta was that the Municipal Councillors had been eager and willing participants in contemplating blatant violation of the law and in accepting illegal gratification for circumventing and violating legal provisions. Additionally, some of the Respondent Municipal Councillors also demonstrated a willingness to accept illegal gratification with a view to disbursing the same to other officials involved in perpetuating the said illegalities, thus effectively acting as a conduit for further illegal activity.

21. Since the evidence collected by the Hon'ble Lokayukta in accordance with the Act amounts to legal evidence recorded in deemed judicial proceedings, it was further concluded that the material on record should be forwarded to the appropriate investigating agency for further action in this regard.

22. Consideration by the Lieutenant Governor of the Report submitted by the Hon'ble Lokayukta under Section 12(1) is dealt with in Section 12(2) of the Act, which provides that: "The competent authority shall examine the report forwarded to it under sub-section (1) and intimate, within three months of the date of receipt of the report, the Lokayukta or, as the case may be, the Upalokayukta, the action taken or proposed to be taken on the basis of the report"

23. In considering the various reports submitted by the Hon'ble Lokayukta, the Lieutenant Governor as the Competent Authority under the Act adopted a procedure altogether alien to the statutory scheme and effectively conducted a de novo hearing of each of these cases. In each individual case, notice was issued to the Respondent Municipal Councillors, a further personal hearing was granted and submissions were recorded. This procedure of granting a fresh hearing following receipt of a report by the Hon'ble Lokayukta under Section 12(1) is nowhere contemplated in the Act. The language of the relevant statutory provision, Section 12(2) in fact militates against adoption of such a procedure by specifying that the action taken or proposed to be taken by the Lieutenant Governor was to be "on the basis of the report" submitted by the Hon'ble Lokayukta under Section 12(1).

24. The procedure adopted by the Lieutenant Governor effectively supplanted the procedure prescribed in the Act for the functioning of the institution of the Lokatyukta and the sanctity to be given to the institution of the independent ombudsman as envisaged in the Act. This is apparent from the fact that the fresh hearing afforded to each of the Municipal Councillors served as the basis of the Lieutenant Governor's rejection of the course of action proposed by the Hon'ble Lokayukta in each of these cases. Despite finding no legal infirmity in the procedure adopted by the Hon'ble Lokayukta in conducting the proceedings or disturbing the factual basis on which the conclusion of the Hon'ble Lokayukta were premised, the Lieutenant Governor as the Competent Authority saw fit to disregard the recommendations of the Hon'ble Lokayukta and observe that no action was required to be taken against any of the Respondent Municipal Councillors.

25. The various reasons assigned by the Lieutenant Governor for rejection of the Reports in the individual cases of the Respondent Municipal Councillors can broadly be summarised as follows:

i. That the person in question had already been disgraced publicly

ii. That the persons in question had subsequently been denied a ticket to contest the Municipal Elections again

iii. That the Municipal Councillor had "spoken very little" during the course of the interaction with the journalists posing as builders

iv. That the person in question was no longer a Municipal Councillor and therefore there was no need/purpose served in sending the transcript and footage of the sting operation to the appropriate investigating agency for further action

26. The Petitioners submit that the orders passed by the Lieutenant Governor rejecting the recommendations of the Hon'ble Lokayukta are liable to be set aside as being wholly unreasonable, vitiated by arbitrariness and bearing no rational nexus with the gravity and seriousness of the criminal offences that the Hon'ble Lokayukta has found to be prima facie made out. Particularly with reference to the conclusion arrived at by the Hon'ble Lokayukta that the impugned conduct of the Respondent Municipal Councillors prima facie discloses the commission of offences attracting penal sanction, it is not open to the Lieutenant Governor, without disturbing the factual or legal basis of the said conclusion to nevertheless set aside the said recommendation. It is well settled that criminal culpability survives the removal of the person from the post or office held during the commission of the criminal act or omission. Further, the state in such instances is required under law to take necessary action to initiate appropriate proceedings against the perpetrators of criminal activity. Expression of regret and perceived extra-legal sanctions, such as public disgrace/shaming, cannot in a system governed by the rule of law serve to grant remission from the rigours of the criminal justice system.

27. The Petitioner submits that the reasons specified by the Lieutenant Governor for rejecting the recommendations of the Hon'ble Lokayukta Lokayukta upon scrutiny prima facie betray complete lack of application of mind by the Lieutenant Governor. The conclusions of the Hon'ble Lokayukta were the outcome of a quasi-judicial proceeding during which all relevant material was duly considered and the Respondent Municipal Councillors were afforded a full hearing. As such, these findings are to be accorded the deference due to a reasoned finding of a statutory authority tasked with ensuring probity and transparency in public administration.

28. The Hon'ble Apex Court has repeatedly held that the rights guaranteed to citizens under Part III of the Constitution require that any action of the state or its instrumentalities be just, fair, reasonable and exercised for a bona fide purpose. Further, it has been reiterated that Article 21 serves as a constitutional guarantee of a corruption free government and all state action must be directed towards achieving this outcome. The action of any state functionary that fails to serve this objective is thus ultra vires the Constitution of India.

29. Upon receipt of the various orders passed by the Lieutenant Governor in the cases of the Respondent Municipal Councillors, the Hon'ble Lokayukta, not being satisfied with the non-acceptance of the recommendations made by him, took recourse to the procedure stipulated in Section 12(3) of the Act. In accordance with the same, separate Special Reports was made to the Lieutenant Governor seeking reconsideration of the decision of the Competent Authority and pointing out the legal position and excerpts from the recorded conversations that had possibly escaped the attention of the Lieutenant Governor.

30. For the convenience of the Hon'ble Court and in the interests of brevity, the Petitioner herein submits a chart summarising the factual position in respect of each of the Respondent Municipal Councillors, indicating the nature of the transgression identified by the Hon'ble Lokayukta, the consequential recommendation by the Hon'ble Lokayukta, the reasons recorded by the Lieutenant Governor in rejecting such recommendations and the further action taken by the Hon'ble Lokayukta:

Shri Subhash Jain, Ex- Councillor :

Lokayukta's finding: The Councillor of his own volition expressly and willingly agreed to help the reporters raise unauthorized construction without sanction of plans by assuring to personally sort the matter with the Jr. Engineer. Prima facie, offence under sections 8 & 9 of PCA was committed. Accordingly, it was ordered that the evidence recorded in the deemed judicial proceedings be forwarded to the Commissioner of Police for consideration as to whether it constitutes an offence under the PCA.

Order of the Competent Authority: The LG held further proceedings by granting personal hearings. No action was taken as censure was deemed as uncalled for. The LG held vide order dated January 18, 2013, "the sting operation has already brought disgrace to the Respondent Councillor and he was subsequently not given the ticket to contest the Municipal Elections again.

Further action by the Lokayukta: The Lokayukta vide letter dated February 28, 2013 submitted the Special Report under section 12 (6) of the Act; praying to the LG to reconsider his decision of not acting on the recommendations, failing which he requested that the Special Report with explanatory memorandum be laid before the Legislative Assembly as per the statute.

Ms. Anita Koli, Ex- Councillor :

Lokayukta's finding: The Councillor and her husband were interested in taking money and getting unauthorized construction done by paying part of illegal gratification to Jr. Engineer. The facts emerging in the transcript may Prima facie amount to an offence under PCA. Accordingly, it was ordered that the evidence recorded in the deemed judicial proceedings be forwarded to the Commissioner of Police for consideration as to whether it constitutes an offence under the PCA.

Order of the Competent Authority: The LG held further proceedings by granting personal hearings. No action taken as censure was deemed as uncalled for. The LG held vide order dated November 9, 2012, "…the sting operation was carried out with malafide intentions to defame her and ruin her career…..she had spoken very little during the entire episode and on no occasion had sought any illegal gratification for herself or anybody else."

Further action by the Lokayukta: The Lokayukta vide letter dated February 28, 2013 submitted the Special Report under section 12 (6) of the Act; praying to the LG to reconsider his decision of not acting on the recommendations, failing which he requested that the Special Report with explanatory memorandum be laid before the Legislative Assembly as per the statute.

Ms. Shateshwari Joshi, Ex- Councillor :

Lokayukta's finding: The Councillor was demanding Rs. 7.00 lakhs instead of Rs. 5.00 lakhs being offered and agreed to talk to the Jr. Engineer to get the illegal construction done. Censure was recommended and as per Lokayukta's report of June 29, 2012, Prima facie offence under sections 7, 8, & 9 of PCA committed.

Order of the Competent Authority: The LG held further proceedings by granting personal hearings. No action taken as censure was deemed as uncalled for. The LG held vide order dated October 26, 2012 "…at no occasion she had asked for any gratification. The sting operation has already brought public disgrace to the Councillor. Therefore, after careful consideration of the report and all aspects of the case, I hold that the issue of "Censure" is not called for in this case."

Further action by the Lokayukta: The Lokayukta vide letter dated February 28, 2013 submitted the Special Report under section 12 (6) of the Act; praying to the LG to reconsider his decision of not acting on the recommendations, failing which he requested that the Special Report with explanatory memorandum be laid before the Legislative Assembly as per the statute.

Ms. Manju Gupta, Ex- Councillor

Lokayukta's finding: The Councillor showed her willingness to support the raising of illegal construction and providing protection from MCD officials. The Councillor and her husband assured protection against gratification and discussed the amount as well. As per Lokayukta report dated July 10, 2012, prima facie, offences under the PCA and IPC was committed. It was ordered that the evidence be forwarded to the appropriate investigating agency for consideration and further action that may be necessary.

Order of the Competent Authority: The LG held further proceedings by granting personal hearings. No action taken as censure was deemed as uncalled for. The LG held vide order dated December 24, 2012, "...that she had spoken very little during the entire episode and at no occasion had the Respondent Councillor sought any illegal gratification for herself or anybody else. I, therefore, hold that the issue of "Censure" is not called for in this case."

Further action by the Lokayukta: The Lokayukta vide letter dated March 8, 2013 submitted the Special Report under section 12 (6) of the Act; praying to the LG to reconsider his decision of not acting on the recommendations, failing which he requested that the Special Report with explanatory memorandum be laid before the Legislative Assembly as per the statute.

Ms. Beena Thakuria, Ex- Councillor :

Lokayukta's finding: The Councillor showed acute interest for raising illegal construction and expected a financial reward for providing her help and assistance. She showed eagerness for the illegal gratification in lieu of her help in doing such act by exercising her influence with the Jr. Engineer whose official duty is to stop unauthorized construction. Prima facie, as per Lokayukta's report dated August 3, 2012, offence under sections 8, 9 & 13 (d) (ii) of PCA was committed. Accordingly, it was ordered that the evidence recorded in the deemed judicial proceedings be forwarded to the Commissioner of Police for consideration as to whether it constituted an offence under the PCA and warranted any further action.

Order of the Competent Authority : The LG held further proceedings by granting personal hearings. No action taken as censure was deemed as uncalled for. The LG observed that the sting operation had already served its intended purpose and had brought disgrace to the Councillor. Further, she had not been given a ticket for contesting Municipal Elections. Therefore, issue of "Censure" was not called for.

Further action by the Lokayukta: The Lokayukta vide letter dated March 13, 2013 submitted the Special Report under section 12 (6) of the Act; praying to the LG to reconsider his decision of not acting on the recommendations, failing which he has requested that the Special Report with explanatory memorandum be laid before the Legislative Assembly as per the statute.

Ms. Jaishree Panwar, Ex- Councillor :

Lokayukta's finding: The Councillor was more than eager and willing to facilitate the unauthorized construction through a willing Jr. Engineer. Her willingness to speak and contact the concerned Jr. Engineer at the opportune time, coupled with her self-professed closeness to the builders, shows misconduct and breach of norms of integrity on her part. As per Lokayukta's report dated May 25, 2012 the ingredients of Section 7, 8, & 9 of the PC Act are substantially made out in the case.

Order of the Competent Authority: The LG held further proceedings by granting personal hearings. No action taken as censure was deemed as uncalled for. The LG observed that the sting operation had already served its intended purpose and had brought disgrace to the Councillor. Further, she had not been given a ticket for contesting Municipal Elections. Therefore, issue of "Censure" was not called for.

Further action by the Lokayukta: The Lokayukta submitted the Special Report dated August 8, 2012, under section 12 (6) of the Act, praying to the LG to reconsider his decision of not acting on the recommendations, failing which he requested that the Special Report with explanatory memorandum be laid before the Legislative Assembly as per the statute.

Shri Ravi Prakash Sharma, Ex Councillor :

Lokayukta's finding: The Councillor knowingly offered to act as a facilitator to carry out unauthorized construction and give his help by assuring that he would `handle' the Jr. Engineer of MCD. Being in the know that construction of a building without a sanction plan was in contravention of the MCD Act, he agreed to a `reasonable' deal with the builders against a consideration to be agreed upon later. It was observed that construction of a building without sanctioned plan is in contravention of Section 332 and is punishable under Section 461 read with Schedule XII of the Delhi Municipal Corporation Act 1957. The action of a public representative in offering to act as a facilitator for construction without sanctioned plan would be in contravention of the above provision and in violation of conduct required to be observed by Municipal Councillors under Section 2 (b) (i) of the Act.

Order of the Competent Authority: The LG observed that "Issuing of such reprimand at present would be inconsequential since the respondent is no longer a Municipal Councillor."

Further action by the Lokayukta: The Lokayukta vide letter dated July 19, 2012 submitted the Special Report under section 12 (6) of the Act, praying to the LG to reconsider his decision of not acting on the recommendations, failing which he has requested that the Special Report with explanatory memorandum be laid before the Legislative Assembly as per the statute.

Shri Ajit Singh Tokas, Ex-Councillor :

Lokayukta's finding: The Councillor, being aware that the proposed construction was unauthorized and without a sanction plan, discussed in detail the evaluation of the proposed project and its profitability. However, there was no demand for illegal gratification. It was therefore recommended to issue an advisory to the Councillor, cautioning him not to entertain or offer help regarding unauthorized construction as it was against his public duty to encourage unauthorized construction.

Order of the Competent Authority: The LG observed that "Issuing of such Advisory at present would be inconsequential since the defaulting Public Official is no longer a Municipal Councillor."

Further action by the Lokayukta: The Lokayukta vide letter dated July 19, 2012 submitted the Special Report under section 12 (6) of the Act, praying to the LG to reconsider his decision of not acting on the recommendations, failing which he has requested that the Special Report with explanatory memorandum be laid before the Legislative Assembly as per the statute.

31. Despite the fact that the Special Reports in the cases of some of the Respondent Municipal Councillors were made as far back as July 2012, action on the same on the part of the Lieutenant Governor is still not forthcoming. While the various Special Reports have been laid on the table of the State Assembly, neither the executive nor the legislature has seen fit to take any action on the same.

32. The procedure adopted by the Lieutenant Governor in considering the recommendations of the Hon'ble Lokayukta and the reasons based on which the said recommendations have been disregarded have effectively rendered statutory provisions establishing the Lokayukta otiose. The object and purpose for which the said legislation was enacted, i.e., establishment of an independent ombudsman whose recommendations were to be given due credence and serve as the basis for further appropriate action stands defeated by the abovementioned approach adopted by the Lieutenant Governor.

33. Faced with the continued failure of the Competent Authority to take the necessary action to give effect to his recommendations, the Hon'ble Lokayukta has been constrained, in accordance with Section 12(7) of the Act, to issue `Substance of cases' detailing the recommendations made by him in the cases of the Respondent Municipal Councillors as well as critiquing the legal basis of the rejection of the said recommendations by the Competent Authority.

34. As part of the said `Substance of cases', the Hon'ble Lokayukta has also had occasion to opine on the procedure adopted by the Comptent Authority as well as the reasons cited in favour of rejection of the recommendations made by the ombudsman. For the convenience of the Hon'ble Court, the position taken by the Hon'ble Lokayukta in the `Substances of cases' relating to the Respondent Municipal Councillors may be summarised as follows:

i. The inquiry was conducted giving full opportunity to the Respondent Municipal Councillors to have their say and lead evidence. There is no contention on the part of any of these individuals that there was a failure to comply with natural justice by the Hon'ble Lokayukta

ii. The raw footage and transcript of conversations drawn from such footage that formed the factual basis for the conclusions arrived at by the Hon'ble Lokayukta was admitted as between the parties and in such is unimpeachable. Nor have the Respondent Municipal Councillors sought to deny the contents of the same or question the veracity of the raw footage.

iii. The Act nowhere provides for nor contemplates further hearing by the Competent Authority and in fact requires that the latter take a decision "on the basis of" the report of the Hon'ble Lokayukta. The grant of such further hearing is not in accordance with the Act, which position is fortified by a written opinion of a former Attorney General for India

iv. In any event, the legally flawed approach adopted by the Competent Authority was further vitiated by the failure to issue notice to the Amicus Curiae appointed by the Hon'ble Lokayukta, who should have been given notice to bring to the attention of the Lieutenant Governor the relevant facts, the incriminating parts of the conversations and salient aspects justifying the recommendations of the Hon'ble Lokayukta.

v. The difference in interpretation of the Acts by the Hon'ble Lokayukta and the Competent Authority was a matter that ultimately required judicial resolution and determination .

vi. No disagreement was expressed by the Competent Authority with the findings or conclusions reached by the Hon'ble Lokayukta in any of these cases.

vii. Simply because someone has ceased to hold public office is no ground to absolve him or her of any punishment or penalty, particularly in view of the fact that such persons may be aspirants for other higher public office.

viii. Similarly, expression of regret does not serve to efface the offence committed, particularly when the same is in the context of a criminal law statute.

ix. In each of the cases in which criminal offences under the PC Act and MCD Act have been found to be prima facie established, the individual in question was shown in the footage to be a willing participant in the illegal activities contemplated and either actively, passively, or through a conduit sought and bargained over the illegal gratification payable. In many cases, the individuals in question also offered their services for passing on illegal gratification to other public officials.

35. The Petitioner submits that allowing admitted criminal misconduct on the part of elected representatives to escape unpunished despite the clear findings of the Lokayukta in this regard not only erodes the public faith in the institution of the independent ombudsman but is also ultra vires Articles 14 and 21 of the Constitution of India.

36. The Petitioner as a concerned and responsible civil society organisation committed to the cause of probity and transparency in public administration is therefore constrained to file the present Petition seeking appropriate action by the Hon'ble Court to give effect to the letter and spirit of the Act and direct that the recommendations of the Hon'ble Lokayukta be given effect to in full, including by calling for and quashing the orders passed by the Competent Authority being the Lieutenant Governor of Delhi in the cases of Shri Subhash Jain (dated January 18, 2013), Ms. Anita Koli (dated November 9, 2012), Ms. Shateshwari Joshi (dated October 26, 2012), Ms. Manju Gupta(dated December 24, 2012), Ms. Beena Thakuria, Ms. Jaishree Panwar (dated July 18, 2012) Shri Ajit Singh Tokas (dated June 26, 2012) & Shri Ravi Sharma (dated July 11, 2012) on the following:

GROUNDS:

A. The Hon'ble Supreme Court in the case of St. of Gujarat v. R. A Mehta (2013) 3 SCC 1 has unequivocally held that maladministration and corruption are destructive of the rule of law and the constitutional guarantees under Articles 14 and 21. The Hon'ble Apex Court observed :

"Corruption in a civilised society is a disease like cancer which if not detected in time is sure to spread its malignance among the polity of the country leading to disastrous consequences…Corruption is opposed to democracy and social order, as being not only anti-people but also due to the fact that it affects the economy of the country and destroys its cultural heritage. It poses a threat to the concept of constitutional governance and shakes the very foundations of democracy and the rule of law. It threatens the security of the societies undermining the ethical values and justice jeopardising sustainable development. Corruption devalues human rights, chokes development and corrodes the moral fabric of society. It causes considerable damage to the national economy, national interest and the image of the country… …..

Corruption in a society is required to be detected and eradicated at the earliest as it shakes "the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating (sic) society". Liberty cannot last long unless the State is able to eradicate corruption from public life. Corruption is a bigger threat than external threat to the civil society as it corrodes the vitals of our polity and society. Corruption is instrumental in not proper implementation and enforcement of policies adopted by the Government. Thus, it is not merely a fringe issue but a matter of grave concern and requires to be decisively dealt with"

It is thus submitted that the well established position of law is that the constitutional guarantee requires that a policy of zero tolerance be adopted towards any corruption in public administration and that necessary action be taken to prosecution and punish the same. Failure to do so would have the deleterious effects highlighted by the Hon'ble Supreme Court and would, ex hypothesi, beultra vires the Constitution of India.

B. That the Hon'ble Apex Court in the abovementioned case sought to emphasise the central role of the office of the Lokayukta in providing a mechanism through which maladministration can be checked. It has been held that "In a state where society suffers from moral denigration and simultaneously from rampant corruption, there must be an effective forum to check the same. Thus the Lokayukta Act may be termed a pro-people Act". It was further emphasised that keeping in mind the scope and object of the Act, the provisions of the same were to be interpreted in a purposive manner so as to best serve the objective of empowering the Lokayukta to eradicate the evil of corruption and ensure realisation of the constitutional guarantee of a corruption free society. It is humbly submitted that the said purposive approach must also be adopted by this Hon'ble Court in interpreting the provisions of the Delhi Lokayukta and Upalokayukta Act, 1995.

C. That on a purposive interpretation of the Act, it is apparent that the recommendations of the Hon'ble Lokayukta are to be acted upon by the Competent Authority absent a finding that the same are vitiated bymala fides or are arbitrary, wholly unreasonable or were arrived at without adherence to principles of natural justice.

D. That the procedure adopted by the Competent Authority effectively amounted to a de novo hearing of each of the cases of the Respondent Municipal Councillors. This procedure of granting a fresh hearing following receipt of a report by the Hon'ble Lokayukta under Section 12(1) is nowhere contemplated in the Act. The language of the relevant statutory provision, viz. Section 12(2), in fact militates against the adoption of such a procedure by specifying that the action taken or proposed to be taken by the Lieutenant Governor was to be "on the basis of the report" submitted by the Hon'ble Lokayukta under Section 12(1). The Competent Authority has thus acted in contravention of the provisions of the act and effectively supplanted the procedure clearly indicated in the statute itself.

E. That in the cases of each of the Respondent Municipal Councillors, it is the admitted position that the principles of natural justice have been fully complied with. The concerned individuals were at all times represented by legal counsel and were given the opportunity to lead submissions on fact and law before the Hon'ble Lokayukta. Admittedly, the procedure followed by the Hon'ble Lokayukta does not suffer from any procedural infirmity. In such circumstances, in considering the recommendations of the Hon'ble Lokayukta, it is not open to the Competent Authority to put in place a procedure not contemplated in the Act merely with a view to affording a basis for rejection of the said recommendations.

F. That the procedure adopted by the Competent Authority not only renders the provisions for hearing before the Hon'ble Lokayukta otiose. But also has the effect of rendering the very institution of the Lokayukta redundant. If in every case the Competent Authority were to rehear the matter in its entirety and arrive at contrary findings based on such hearing, the role of the Hon'ble Lokayukta would become untenable and the statutory function clearly ascribed to the ombudsman in the Act would be devalued.

G. That the Competent Authority cannot arrogate itself to the position of a Court of first instance on matters of fact as well as law as has been done in the instant case. Rather, Section 12(2) of the Act and the central role of the Lokayukta under the Act in identifying and initiating proceedings against corrupt public functionaries suggests that the recommendations of the Hon'ble Lokayukta are ordinarily to be implemented in full unless vitiated by a legal infirmity in the process of decision-making or if the decision itself is so unreasonable that it could not have been arrived at by any reasonable person, or the Lokayukta has considered irrelevant material or has failed to consider relevant material. Admittedly, none of these infirmities are present in the Reports issued by the Hon'ble Lokayukta in the present case.

H. That there was no legal basis for the rejection by the Competent Authority of the recommendations of the Hon'ble Lokayukta since the primary evidence in the present case, i.e., the raw footage of the sting operation as well as the transcripts of the conversations so recorded was admitted as between the parties. The Respondent Municipal Councillors also at no point sought to challenge the veracity of the raw footage. Hence, no factual dispute existed in the present case. Further, in no case has the Competent Authority expressed any disagreement with the findings or conclusions reached by the Hon'ble Lokayukta. As such, the recommendations have been set aside on the basis of orders that are for all intent and purposes non-speaking in so far as the substantive legal questions in issue are concerned.

I. That when the recommendations contained in the report of the Hon'ble Lokayukta prima facie indicate the commission of an offence under a penal statute, it is not open to the Competent Authority to reject the recommendation of the Hon'ble Lokayukta to place all relevant material before the appropriate investigative authority to determine the further course of action to be taken.

J. That the reasons advanced by the Competent Authority for rejecting the recommendations of the Hon'ble Lokayukta, i.e., expression of regret by the Respondent Municipal Councillors, public disgrace and or a passive/muted participation in criminal activity cannot be regarded as effacing admitted criminal activity and earning a remission from the full rigor of the criminal justice system. In fact, the said reasons do not even amount to substantive defence in criminal proceedings.

K. That the reasoning based on which the Competent Authority has rejected the recommendations of the Hon'ble Lokayukta prima facie demonstrates lack of application of mind and failure to consider the relevant material.

L. That the fact that a person has demitted public office does not efface his/her criminal culpability arising out of acts or omissions carried out while holding such office.

M. That it is not open to the Competent Authority to condone criminal conduct on the specious ground that taking of action would be `inconsequential' in a given case. Such a decision can only be taken at the instance of the competent Investigating Officer and such decision is subject to challenge in accordance with the provisions of the Criminal Procedure Code and other applicable penal statutes. By declining to even send the relevant evidence to the appropriate authority under law, the Competent Authority has altogether bypassed the applicable legal provisions and deprived concerned members of the public their right to take part in and assist in the prosecution of criminal conduct.

N. That when criminal conduct or omissions on the part of a public functionary are brought to the attention of a responsible state organ, the latter is obligated as a matter of law to refer the same to the appropriate investigative agency for further appropriate action, including prosecution in accordance with law. No discretion vests in the Competent Authority to substitute its opinion for that of the investigating agency or to pre-emptively close such investigation at its own instance. Such a procedure is alien to the Criminal Procedure Code and other applicable penal statutes.

O. In view of the constitutional guarantee under Articles 14 and 21, there is a positive obligation on all state functionaries to act in a manner consistent with the achievement of this constitutional guarantee. The conduct of the Competent Authority has the effect of shielding brazen acts of corruption by elected representatives as identified by a statutory authority established for this purpose, i.e., the Lokayukta and is therefore ultra viresPart III of the Constitution of India.

P. That the conduct of the Competent Authority is destructive of the rule of law, which is part of the basic structure of the Constitution and does violence to the constitutional guarantees of transparency and probity in governance and public administration.

37. That the Petitioner submits no similar petition has been filed by the Petitioner challenging the said orders, either before any other court, including the Hon'ble Court or the Hon'ble Supreme Court.

PRAYER

In the circumstances, it is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to:-

a) issue an appropriate Writ, direction or declaration, declaring that the orders passed by His Excellency, the Lieutenant Governor of Delhi in the cases of Shri Subhash Jain (dated January 18, 2013), Ms. Anita Koli (dated November 9, 2012), Ms. Shateshwari Joshi (dated October 26, 2012), Ms. Manju Gupta(dated December 24, 2012), Ms. Beena Thakuria (dated March 4, 2013) Ms. Jaishree Panwar (dated July 18, 2012) Shri Ajit Singh Tokas (dated June 26, 2012) & Shri Ravi Prakash Sharma (dated July 11, 2012) rejecting the recommendations of the Hon'ble Lokayukta dated of Shri Subhash Jain (dated August 27, 2012), Ms. Anita Koli (dated June 29, 2012), Ms. Shateshwari Joshi (dated June 29, 2012), Ms. Manju Gupta (dated July 10, 2012), Ms. Beena Thakuria (August 3, 2013), Ms. Jaishree Panwar (dated May 25, 2012), Shri Ajit Singh Tokas (dated March 26, 2012), & Shri Ravi Prakash Sharma (dated March 22, 2012) are illegal, null, void and ultra vires the Constitution of India

b) direct that the entire record pertaining to the cases of the Respondent Municipal Councillors be forwarded to the Commissioner of Police for consideration, evaluation and further action in accordance with law

c) grant any further relief that this Hon'ble Court may deem appropriate in the facts and circumstances of the case

d) pass such other and further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.

FILED BY :

MAHESH AGARWAL

RISHI AGARWALA

NEEHA NAGPAL

ADVOCATES FOR THE PETITIONER

January March 2014