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Supreme Court of India
Shaikh Ansar Ahmad Md Husain vs The State Of Maharashtra on 5 October, 2021Author: Uday Umesh Lalit
Bench: L. Nageswara Rao, S. Ravindra Bhat
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 695 of 2021
(ARISING OUT OF SLP (C) NO. 11469 OF 2020)
SHAIKH ANSAR AHMAD MD. HUSAIN …APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL NO.696/2021
(ARISING OUT OF SLP (C) NO. 12501 OF 2020)
WITH
CRL.APPEAL NO.1157/2021
(ARISING OUT OF SLP (CRL.) NO. 6081 OF 2020)
WITH
CIVIL APPEAL NO.700/2021
(ARISING OUT OF SLP (C) NO. 15628 OF 2020)
WITH
CIVIL APPEAL NO.699/2021
(ARISING OUT OF SLP (C) NO. 15626 OF 2020)
WITH
Signature Not Verified
Digitally signed by
Indu Marwah
CIVIL APPEAL NO.698/2021
Date: 2021.10.05
18:59:50 IST
Reason:
(ARISING OUT OF SLP (C) NO. 14578 OF 2020)
WITH
2
CRL. APPEAL NO.1158/2021
(ARISING OUT OF SLP (CRL.) NO. 6711 OF 2020)
WITH
CIVIL APPEAL NO. 697/2021
(ARISING OUT OF SLP (C) NO. 12506 OF 2020)
WITH
CRL. APPEAL NO.1156/2021
(ARISING OUT OF SLP (CRL) NO. 5113 OF 2020)
WITH
CRL. APPEAL NO.604/2021
(ARISING OUT OF SLP (CRL) NO. 5114 OF 2020)
WITH
CRL. APPEAL NO. 605/2021
(ARISING OUT OF SLP (CRL) NO. 4516 OF 2020)
WITH
CRL. APPEAL NO.603/2021
(ARISING OUT OF SLP (CRL) NO. 773 OF 2021)
JUDGMENT
S. RAVINDRA BHAT, J.
1. Special leave granted in all the petitions. The appeals were heard
with consent of counsel appearing for the parties to these proceedings.
2. The grievance of the appellants in these batch of appeals is with
respect to a common judgment of the Aurangabad Bench of the Bombay
3
High Court.1 In the criminal public interest litigation, the respondents
(original writ petitioners, hereafter “PIL petitioners”) sought directions to
the Union of India, the State of Maharashtra, the Maharashtra Housing
and Urban Development Authority (MHADA) and state officials to initiate
criminal proceedings against the responsible officers and office bearers
of Municipal Council, Naldurg (hereafter “municipality”) and concerned
contractors for misappropriation of government funds in implementation
of the housing scheme in the municipality. Some appellants had filed
criminal petitions, opposing the criminal proceedings, which were
disposed of.
3. The PIL petitioners claimed to be social activists and former
Councillors of the municipality who were involved in social activities,
reforms and reconstruction of the society which included running a
library (Lokmanya Book Library at Naldurg). They had also organized
various camps like literacy camp for illiterate people, chalice (Panpoi) at
public places during summer season, etc.
4. The Union of India implemented the Integrated Housing and Slum
Development Programme (IHSDP), through the State Government, under
the “Jawaharlal Nehru National Urban Renewal Mission” (hereafter “the
Mission”) for providing basic services to the urban poor including security
1
dated 27.06.2019 in Criminal Public Interest Litigation No. 6/ 2018, with Public Interest Litigation No. 70/2014 and
Criminal Application Nos. 2075, 2091 and 2107/ 2019.
4
of tenure of affordable prices, improved housing, water supply, sanitation
and ensuring delivery through convergence of other existing universal
services of the government for education, health and social security. The
Mission also aimed to ensure that the urban poor were provided housing.
The scheme applies to all cities/towns under the Mission. The guidelines
for Basic Services to the Urban Poor (BSUP) and IHSDP were issued in
December 2005; pursuant to which, the state government appointed
urban local bodies as nodal agencies. In this case, MHADA is the nodal
agency.
5. In terms of a government resolution dated 03.02.2009, the
construction cost for each dwelling house unit was ₹ 80,000/-. The
minimum floor area of such dwelling house was to be 25 sq. metres at a
minimum, with two rooms, a kitchen and a toilet bathroom. The funds
for implementing the said scheme were in the ratio of 80:20 (between the
Central Government and the State Government-Urban Local Bodies).
Further, beneficiaries under the scheme had to contribute a minimum
12%, and in case of reserved category the contribution was to be 10%.
The nodal agency designated for implementation of the said scheme was
responsible for inviting proposals from urban local bodies and thus,
Respondent Nos. 3 and 6 – which are the nodal agencies – were
responsible for and had control over implementation of the scheme
5
within the state government. Naldurg in Osmanabad district was
included under the scheme of IHSDP for providing houses to the poor
people.
6. Pursuant to the scheme, a detailed project report was prepared, in
terms of which 1206 houses for the poor were to be constructed. 737
beneficiaries belonging to reserved category and 469 from general
category were identified as beneficiaries of the project. The cost of each
house was fixed at ₹ 1,00,551/-; the total cost of the project was fixed at
₹ 20,69,04,514/-, of which cost for construction was ₹ 16,08,91,396/-
and ₹ 4,11,17,000/- was the cost towards infrastructure. The
municipality published a tender notice2. The estimated cost of the work
in the tender was ₹ 15,08,91,396/- and the time stipulated for
completion of construction of 1206 dwelling units was 18 calendar
months, including the monsoon season. Though the last date for opening
of tender bids was 22.09.2008, the municipality did not wait till that date
and the offers were placed before its special general meeting held on
20.09.2008. Respondent No. 8’s tender- being the lowest- was to be
accepted and work order was to be issued in its favour after accepting
their security deposit. On 22.09.2008 formalities for execution of lease
agreement between the state and the municipality, leasing lands at
2
In the “Daily Sakal”, in its issue dated 26.08.2008.
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Survey Nos. 29 and 236 (measuring 20 hectares and 20 ares) for
implementation of the scheme, were completed. The municipality issued
the work order on 07.10.2008 and the same day an agreement was
entered into between the municipality and the private respondent; the
municipality released 12% of the total cost, i.e., ₹ 1,44,00,000/- as
mobilization advance to Respondent No. 9 on 20.12. 2008.
7. The PIL petitioners alleged that though in terms of the contract,
Respondent No. 9 had to construct 1206 house units within 18 months,
as on the date of filing of the litigation it had constructed only 30 units.
They alleged that the quality of work carried out by Respondent No. 9
was very poor and the officials (i.e. MHADA, municipality, etc.) did not
inspect or supervise the work, and did not submit the quarterly reports
as required under the scheme. While MHADA had issued notices to the
municipality from time to time directing it to submit quarterly progress
report, the latter had not complied. Contrary to the directions of the
central and state governments, the municipality diverted the funds
meant for the said development project, for other works. It was submitted
that despite the requirement that the work of infrastructure be carried
out only after completion of 50% of construction of dwelling house units,
Respondent No. 7 straightaway allotted the work of infrastructure in
favour of Respondent No. 10 prior to achieving such a stage of
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construction and without inviting any intenders from the contractors
authorized by MHADA. Various irregularities, such as higher fixation of
price of dwelling house, i.e., ₹ 1,00,551/- instead of ₹ Rs. 80,000/-,
failure to complete the project, and various other omissions were alleged.
The PIL petitioners also relied on reports dated 04.11.2018 and
15.03.2012, respectively.
8. After considering the pleadings of the PIL petitioners, and the
official respondents, the court, on 02.04.2019 issued the following
directions:
“The Divisional Commissioner, Aurangabad Division, Aurangabad,
shall convene a meeting of Collector, Osmanabad and other officers
including technical persons from MHADA, who is acting as a Nodal
agency, the Chief Officer of the Municipal Council, Naldurg, within a
period of four weeks from today and shall appraise this Court by
filing an affidavit as regards the steps he propose to take in the
matter of implementing the scheme and in question; in addition to
looking into the irregularities and action to be initiated against the
defaulters. Let this exercise be completed by June 17, 2019, by
filing an affidavit by the Divisional Commissioner, Aurangabad
Division, Aurangabad.”.
9. Pursuant to the above order, the Divisional Commissioner filed his
affidavit inter alia stating that for proper action, by order dated
05.04.2019, he had constituted a committee under the chairmanship of
8
the Chief Officer of the MHADA, along with the other four members3 for
spot inspection and to submit a status report regarding implementation
of the scheme and other related information. He deposed also that the
said committee submitted its report on 20.04.2019 listing several
illegalities and irregularities connected with the implementation of the
scheme, and proposed remedial action. It was stated that the committee
suggested that since both the schemes i.e., IHSDP and Basic Services to
Urban Poor had ended on 31.03.2017, the unallotted houses constructed
under the said scheme may be made available under the Pradhan Mantri
Awas Yojna (PMAY) in view of the G.R. dated 25.09.2019. It was further
suggested that-
a) 155 houses constructed by the municipality required minor repairs,
after such repairs they could be allotted to the original eligible
beneficiaries under the provisions of G.R. dated 25.09.2018.
b) 45 houses needing major repairs to be allotted to eligible beneficiaries
under the said G.R. as per the scheme.
c) 100 houses constructed at Vasant Nagar that could not be repaired
were to be demolished. After preparing the new report under the
PMAY, houses were to be constructed and allotted to the eligible
beneficiaries under the scheme.
10. The affidavit also referred to a meeting of officials on 22.04.2019
conducted pursuant to directions of the court, wherein the committee’s
3
a) Regional Deputy Director Municipal Administration, Officer of Divisional Commissioner, Aurangabad, b) Executive
Engineer, MHADA Aurangabad, c) Assistant Director, Reconciliation, Office of Divisional Commissioner, Aurangabad, d)
Accounts Officer, Municipal Administration, Office of Divisional Commissioner, Aurangabad
9
report was considered, after which the Divisional Commissioner issued
the following directions:
i) The Collector, Osmanabad to conduct the technical valuation of the
work done under her supervision and submit a report regarding
work construction of houses and basic amenities along with quality.
For this purpose, the Commissioner constituted a committee chaired
by the Executive Engineer, MHADA under the overall supervision of
the Collector, Osmanabad.
ii) If financial irregularities had occurred, amounts were to be recovered
from the person(s) responsible for it.
iii) After receipt of the technical committee’s report, action against those
responsible for irregularities was to be taken as per law.
11. The Collector, Osmanabad submitted her report dated 03.06.2019,
which stated that directions were issued to the Chief Officer of the
municipality to recover the excess amount paid to the contractors, to
black list them for Government work, and also to initiate criminal
prosecution against those who committed irregularities. The Chief Officer
of the municipality was also directed to allot houses that could be
repaired, in terms of prescribed procedure, under the PMAY and report
compliance.
12. After taking note of another affidavit of the Commissioner’s dated
12.06.2019, the High Court disposed of the public interest litigations on
27.06.2019 directing the respondents to take steps in light of the reports,
10
and action outlined in paragraph 8 of the affidavit, “to its logical end” as
expeditiously as possible. The Divisional Commissioner of Aurangabad
was also to decide whether the scheme could be completed “by taking
recourse to any other housing scheme” floated by the central or state
government. The court held that there was no reason for it to entertain
any criminal applications, and accordingly rejected them.
Contentions of parties
13. Mr. Shyam Divan, senior counsel for one of the appellants, argued
that the operative part of the impugned judgment was pronounced on
27.06.2019; however, the reasons were uploaded on 05.10.2020 after a
report was called from the Registrar (Judicial) of the High Court at its
Aurangabad Bench. The time gap between the pronouncement and the
operative part of the reasons is a year and over three months. In view of
the recent judgments of this Hon’ble Court in Balaji Baliram Mupade &
Anr v. The State of Maharashtra & Ors.4, Oriental Insurance Co. Ltd. v.
Zaixhu Xie & Ors.5 and Sudipta Chakrobarty & Anr. v. Ranaghat S.D.
Hospital & Ors.6, the impugned order requires to be set aside and the
matter be remanded back to the High Court for fresh consideration, by
further direction for addition of the appellants as respondents.
4
AIR 2020 SC 5758
5
(2020) SCC Online SC 1145
6
AIR 2021 SC 3344
11
14. It was argued by counsel for the appellants, that the High Court
fell into error in failing to notice that neither were the appellants party
respondents in the Public Interest Litigations, nor were they heard. That
fact ipso facto is sufficient to set aside the impugned order since it is in
violation of the principles of natural justice. Had the appellants been
heard, they would have showed the High Court that they were in no way
concerned with the alleged offence. In this regard, reliance is placed on
State of U.P. & Anr. v. Satya Narain Kapoor (dead) by Lrs. & Ors7. Counsel
emphasized that the lack of opportunity to be heard, has resulted in
grave prejudice to the appellants as the respondents have construed the
impugned judgment as directions, requiring them to initiate criminal
proceedings, which have in fact been acted upon. It was urged that some
of the appellants were constrained to seek anticipatory bail, which was
refused, leading them to approach this court. In this regard, learned
counsel were at pains to argue that the first information report (FIR) was
filed on 02.12.2019 as a direct consequence of orders of the court made
on 16.11.2019 and 21.11.2019.
15. It was argued that the petitions which led to the impugned
judgment are an instance of misuse of public interest litigation. It was
highlighted that the petitioners before the High Court were politically
7
(2004) 8 SCC 630
12
motivated individuals. In fact, not a single beneficiary from the housing
scheme came forward to allege illegalities in the scheme. Therefore, filing
of a criminal public interest litigation, contempt petition etc. clearly
showed that such legal action was motivated by mala-fides and were
politically malicious. Therefore, it was incumbent upon the High Court to
follow the guidelines laid down by this court in the case of State of
Uttaranchal v. Balwant Singh Chaufal & Ors8.
16. It is urged that the appellants cannot be accused of committing
any illegality, since clause 20 of the tender document stipulates the
defect liability period to be 60 months, for civil work. The public interest
litigations were filed after the defect liability period, which clearly pointed
to ulterior motive of the PIL petitioners. Counsel underlined the fact that
neither the municipality, nor the government had initiated any legal or
civil action for recovery of any amounts, from the appellants. In these
circumstances, the impugned judgment, inasmuch as it gave undue
credence to a report furnished to the Commissioner, is in error of law.
17. The state and MHADA argue that an Audit Committee was formed
to audit the funds released for BSUP/IHSDP scheme pursuant to its
inspection under the Mission. The Report of the committee was
submitted on 19.11.2014. It stated that funds were released by
8
(2010) 3 SCC 402
13
MHADA/state government to the municipality for the said scheme on
17.09.2014 and 18.09.2014. A total of ₹ 9,29,17,000/- was made
available to the municipality through Aurangabad Board by MHADA for
the IHSDP Program. Of this fund, a payment of ₹ 1,44,00,000/- was
given to the Respondent No.11 towards mobilisation advance and the
entire amount was later recovered from the RA Bills.
18. It was highlighted that out of the fund of ₹ 9,29,17,000/- received
from the central government, recovery from beneficiaries and interest
accrued aggregated to ₹10,25,62,318/-. The municipal council spent
₹ 9,43,33,553/- and the balance left was ₹ 82,28,765/-. In terms of the
standards set by the central government, expenditures were to be made
as per the share of beneficiaries and share of the council. However, the
entire amount was spent from the funds received from the central and
state government. It was found that for the construction of 302
tenements, ₹ 3,03,51,000/- (₹ 1,00,500 each) was to be spent in total but
actually ₹ 5,75,47,141/- was spent. The recovery from beneficiaries was
to be made; yet recoveries were made only from 40 beneficiaries.
19. It was submitted that during spot visits (on 17 and 18 September
2014) of the tenements, it was found that construction had long since
stopped. It was also found that the municipality had undertaken the
construction of 302 tenements in five slum areas. The implementation
14
period ended on 31.03.2015 and it was not possible to meet the
deadlines. The external works were complete. The committee advised
the municipality to allot the tenements immediately because of loss due
to lack of security and non-allotment damage.
20. The respondents submitted that though work had stopped for over
many years, yet amounts were withdrawn from these accounts
throughout the years, leading to the inference that funds were utilized
elsewhere. Further, submitted counsel, it was found in the spot
inspection and joint measurement from a period of 02.05.2019 to
04.05.2019, that out of 1206 tenements, 302 were complete houses and
26 were incomplete houses (in Vasant Nagar external plaster for 8
tenements was not done). The DPR consisted of cement concrete road,
gutters, water supply, electrification and was inspected in terms of the
provisions and actual work done. The inspection was done using core
cutters, digging, etc. at various places. It was found that thickness of
roads was less than quoted in the estimates and bill books. In
Shivkarwadi, excess work was done beyond the DPR map, the payment
for which was already made. The layer of seal coat was not found.
Essential connections were not made to external electrification. Water
pipelines laid down in Vasant Nagar, Filter and Shivkarwadi colonies
were not connected with the OHR, and became useless. The thickness of
15
slabs was uneven at some places. It was found that a compliance report
was also not made available for the recommendations made from time to
time by M/s. SGS India Private Ltd, Hyderabad, a third party, for
inspection.
21. It was urged that valuation of work was made in the Inquiry Report
after necessary inspection and joint measurements. There was a
discrepancy between the amount paid to the contractor, tenement and
external amenities wise as per the Measurement Book, and the amount
calculated as per actual site condition during the joint measurement on
02.05.2019 to 04.05.2019. The observations made by the technical
team, showed that the municipal council made an excess payment of ₹
2,43,79,017/- to the contractors as compared to the work done. Out of
this, an excess amount of ₹ 1,52,81,246/- was allegedly paid to M/s.
Minar Constructions, Latur and ₹ 90,97,771/-, allegedly to Shri Sanjay
Sudhakar Rajhans, Latur.
22. It was argued that the report stated that in terms of the
government resolution dated 25.06.2007 for IHSDP, the municipality
implements the project, and is tasked with the responsibility to prepare
project reports, execute the tripartite MOA with DPR and to select the
beneficiary. The municipality also hands over possession and discharges
all responsibilities. M/s. Saya Engineers, Latur was appointed as the
16
Project Management Consultant (PMC) and entrusted with recording
works done in Measurement Book, verification of the day-to-day work
and giving technical advice. There was dereliction of duties by public
officials and the PMC, by not paying the contractors for the actual work
done. The City Engineer too was responsible for verifying the
measurements made by the PMC and had to attest it, but failed to do so
in this case. The Chief Officer of the municipality, was also responsible
as he failed to record his opinion before clearing the bills. The
accountant’s signature was not found on the bills in the Measurement
Books along with the necessary endorsement. The committee suggested
that completed houses be allotted to the original eligible beneficiaries
under the PMAY scheme, houses which cannot be repaired be
demolished, and a new DPR under the PMAY scheme be prepared for
construction of houses.
23. It is urged that in the meeting held on 22.04.2019 (comprising of
the Collector Osmanabad, Chief Officer MHADA, Chief Officer Municipal
Council Naldurg and others) several actions were proposed, such as
technical valuation of the work done to ascertain if there were any
financial irregularities; determining amount to be recovered from the
responsible person(s) and action to be taken against the person(s) found
responsible for irregularities; among others. In light of the report dated
17
03.06.2019 from the technical team, the Collector Osmanabad directed
the Chief Officer, Municipal Council, Naldurg, to recover the excess
amount paid to the contractors, and blacklist them from Government
work, to initiate criminal prosecution against the person(s) who had
committed the irregularities, and lastly allot the repairable houses as per
PMAY. A compliance report was to be submitted. The Divisional
Commissioner, Aurangabad by his letter dated 11.06.2019 directed the
Collector to take steps for repairing houses which were in repairable
condition to be allotted to the eligible beneficiaries under PMAY and to
demolish houses which are not in repairable condition. A new DPR plan
was to be prepared under PMAY scheme for construction of houses and
their allotment to eligible persons. Counsel submitted that these facts are
a matter of record, and cannot be disputed. In light of these materials,
the authorities lodged the FIR, which led to initiation of criminal
proceedings. No doubt, it would appear that those proceedings were
prompted by the judgment, and the initiation of contempt proceedings.
Yet, the question of quashing the FIR does not arise, because it is based
on allegations of serious illegalities, that cannot be overlooked.
Analysis and conclusions
24. The appellants who have approached this court, were all involved
as persons or authorized individuals, acting on behalf of entities that
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were awarded the contract of construction and completion of the housing
units, pursuant to the scheme, which was to be implemented within 60
months. The spot inspection report dated 24.05.2019, alleges that the
appellants had not performed their task. In the case of the project
consultant – who is one of the appellants – it was of not recording the
works done in the Measurement Book properly, and causing excess
payment to the contractors. PIL No. 70/2014 was filed against the
project contractor, officers and office bearers of Municipal Council.
During the pendency of that petition, criminal PIL No. 6/2018 was filed
by the two Municipal Councillors against the contractor, officers and
office bearers. The High Court disposed of the two public interest
litigations and directed the Divisional Commissioner, Aurangabad to take
steps in the backdrop of various reports submitted to him, as referred to
in the Affidavit-in-Reply dated 12.06.2019 filed by him.
25. The first grievance of the appellants is that the reasoning for the
impugned judgment was given and published long after its operative
portion was pronounced. The operative portion of the judgment was
pronounced on 27.06.2019. The reasons were published on 05.10.2020.
It is clear that the High Court’s order, against which an aggrieved litigant
has a right to approach this court, under special leave jurisdiction,
should contain reasons, without which it would be well-nigh impossible
19
to exercise that right of seeking special leave, and in many cases, urged
ad-interim and, possibly, ex-parte relief. The appellants’ reliance on Balaji
Baliram Mupade & Anr (supra), Oriental Insurance Co. Ltd. (supra) and
Sudipta Chakrobarty (supra) and the other two judgments, cited earlier,
is warranted. In this case, the High Court incontestably should have
furnished the reasons for the operative portion of its order. To that
extent, the appellants’ grievance is justified. This court is however
reluctant to hold – having regard to the circumstances and the facts on
the record – that the absence of reasons struck at the legitimacy of the
impugned judgment. It caused prejudice no doubt, to the extent that the
appellants were unable to furnish grounds on which their special leave
petitions were based. However, that prejudice stood off-set with the
interim orders of this court, which recognized the piquancy of the
situation, and directed stay of further action against the appellants. In
view of these special circumstances, the court is of the opinion that the
impugned order should not be set aside. However, the High Court’s
conduct in not furnishing reasons, either at the time of pronouncement
of the operative part of the judgment, or before the commencement of the
next working day (of the court) is strongly deprecated.
26. The appellant’s next challenge to the impugned judgment is the
ground that the public interest litigation was motivated, and that they
20
were not parties. It is urged that consequently the High Court should not
have issued the impugned directions. Reliance is placed on decisions of
this court, to the effect that so called public interest litigations, motivated
by malice and personal ill will, should not be entertained.
27. There is no doubt, that public interest litigation is meant to be
entertained, for bona fide causes, and not to aid either misguided
individuals in their quest for publicity, or for wreaking vendetta on public
officials or institutions. This court had (undoubtedly before the era of
public interest litigation) emphasized the need to keep out “busybodies”
who “have no interest in matters of public interest” in Jasbhai Desai v.
Roshan Kumar9 and stated, about such individuals, that
“They masquerade as crusaders for justice. They pretend to act in
the name of Pro Bono Publico, though they have no interest of the
public or even of their own to protect. They indulge in the pastime of
meddling with the judicial process either by force of habit or from
improper motives. Often, they are actuated by a desire to win
notoriety or cheap popularity; while the ulterior intent of some
applicants in this category, may be no more than spooking the
wheels of administration. The High Court should do well to reject
the applications of such busybodies at the threshold.”
9
(1976) 3 SCR 58
21
28. In Environment and Consumer Protection Foundation v Union of
India & Ors.10 this court had underlined the purpose of public interest
proceedings, and observed as follows:
“29. Why are the Action Plan and these directions necessary? We
seem to be forgetting the power of Public Interest Litigation and
therefore need to remind ourselves, from time to time, of its efficacy
in providing social justice. Many years ago, this Court noted in
People’s Union for Democratic Rights v Union of India (1982) 3 SCC
235 that :(SCC p. 240, para 2):
“2…Public interest litigation is brought before the court not for the
purpose of enforcing the right of one individual against another as
happens in the case of ordinary litigation, but it is intended to
promote and vindicate public interest which demands that
violations of constitutional or legal rights of large numbers of people
who are poor, ignorant or in a socially or economically
disadvantaged position should not go unnoticed and unredressed.
That would be destructive of the rule of law which forms one of the
essential elements of public interest in any democratic form of
Government.”
A little later in the judgment, it was said: (SCC pp.24243, para 3)
“3….Millions of persons belonging to the deprived and vulnerable
sections of humanity are looking to the courts for improving their life
conditions and making basic human rights meaningful for them.
They have been crying for justice but their cries have so far been in
the wilderness. They have been suffering injustice silently with the
patience of a rock, without the strength even to shed any tears.”
30. The advantage of public interest litigation is not only to
empower the economically weaker sections of society but also to
empower those suffering from social disabilities that may not
necessarily of their making. The widows of Vrindavan (and indeed
10
(2017) 16 SCC 780.
22
in other ashrams) quite clearly fall in this category of a socially
disadvantaged class of our society.
31. Placing empowerment in perspective, this Court noted in State
of Uttaranchal v Balwant Singh Chaufal (2010) 3 SCC 402 that (at
SCC p. 427, para 43) the first phase of public interest litigation
concerned itself with primarily with the protection of the
fundamental rights under Article 21 of the Constitution of “the
marginalized groups and sections of the society who because of
extreme poverty, illiteracy and ignorance cannot approach this
Court or the High Courts.” We may add – the socially
underprivileged groups. These are the people who have no real
access to justice and in that sense are voiceless, and these are the
people who need to be empowered and whose cause needs to be
championed by those who advocate social justice for the
disadvantaged.
32. This recognition formed the basis of the decision of this Court in
Delhi Jal Board v National Campaign for Dignity & Rights of
Sewerage & Allied Workers (2011) 8 SCC 568 wherein providing
succour to the deprived sections of society was recognized as a
“constitutional duty” of this Court. Referring to several judgments
delivered by this Court, it was observed: (SCC p. 590, para 31)
“31. These judgments are a complete answer to the appellant’s
objection to the maintainability of the writ petition filed by
Respondent 1.What the High Court has done by entertaining the
writ petition and issuing directions for protection of the persons
employed to do work relating to sewage operations is part of its
obligation to do justice to the disadvantaged and poor sections of
the society. We may add that the superior courts will be failing in
their constitutional duty if they decline to entertain petitions filed by
genuine social groups, NGOs and social workers for espousing the
cause of those who are deprived of the basic rights available to
every human being, what to say of fundamental rights guaranteed
under the Constitution. It is the duty of the judicial constituent of
the State like its political and executive constituents to protect the
23
rights of every citizen and every individual and ensure that
everyone is able to live with dignity.”
29. In the present case, the appellants urge this court to interfere with
the impugned judgment on the ground that the writ petitioners who
approached the High Court/at whose behest the public interest
proceedings were initiated, and the impugned directions issued, had
personal motive. It was urged that the said writ petitioners were
councillors, and politically motivated. In the opinion of this court, that
fact is insufficient to allow the appeals. The cause espoused by the said
individuals was undoubtedly one of public interest, because it concerned
housing for the economically disadvantaged sections of society, in such
great numbers. The scheme was meant to benefit thousands of persons,
and over a thousand housing units were to be constructed and allotted to
the beneficiaries. In view of the inquiries and the reports, conducted and
prepared during the proceedings, there could have been no manner of
doubt that the initiation of public interest proceedings, were justified,
having regard to the contents of such reports. In the present case, even if
the public interest litigants’ motives were ambiguous, or not immediately
bona fide, that could not have led to dismissal of the writ petition, before
the High Court. The objection as to lack of standing of the public interest
litigants, therefore, is without merit.
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30. The record thus discloses that two PILs had been filed containing
somewhat similar allegations, i.e. the failure and neglect on the part of
the municipal authorities of Naldurg in regard to completion of the
scheme. The public interest litigants had alleged the utter
mismanagement of IHSDP in terms of which as many as 1.05 lakh
dwelling units were to be constructed and handed over to the eligible
individuals. As noted previously, the scheme contemplated a substantial
funding by the central government and the rest of the funding to be
borne by the allottees. As against the targeted 1206 housing units to be
constructed, 737 beneficiaries belonged to the reserved category and the
rest to the general category. The cost of construction was estimated to be
₹ 16,08,91,396/- (Rupees Sixteen Crores Eight Lakhs Ninety One
Thousand Three Hundred Ninety Six only). The total cost was
₹20,69,04,514/- (Rupees Twenty Crores Sixty Nine Lakhs Four Thousand
Five Hundred Fourteen only). Eventually, the material in the form of
inspection reports and affidavits of MHADA as well as the Divisional
Commissioner revealed that only 302 housing units were constructed in
different localities in Naldurg, of which 202 could be used and 100 were
in an unusable and dilapidated condition. The proceedings before the
High Court led to the inspection as well as the verification of accounts as
a consequence of which the affidavits filed on behalf of the authorities
25
revealed that excess payments of ₹1,52,81,846/- (Rupees One Crore Fifty
Two Lakhs Eighty One Thousand Eight Hundred Forty Six only) and
₹90,97,771/- (Rupees Ninety Lakhs Ninety Seven Thousand Seven
Hundred Seventy One only) were made.
31. The main arguments of the appellants are that criminal
proceedings have been initiated against them even though they were not
heard in the public interest proceedings, and that being adverse to them
the judgment is vitiated on account of their non-participation. A
grievance is also made out that of the dwelling units constructed by the
contractors, no deficiency was pointed out by the public agency, i.e. the
municipality and that even civil action stood precluded because the
contractual liability period had lapsed.
32. The impugned judgment disposed of both the PILs. Essentially, the
first direction issued by the High Court, i.e. to the Divisional
Commissioner to take steps referred to in affidavit in reply in general and
para 8 in particular “to its logical end as expeditiously as possible”
appears to be the rub in this case inasmuch as the appellants grouse is
that it has led to lodging of an FIR. The affidavit recounted the objections
of the IHSDP scheme and indicated the state of affairs with respect to the
completed dwelling units, i.e. 302 houses. The affidavit cited the report
dated 20.04.2019 and the steps recommended in the meeting of the
26
Committee on 22.04.2019. The Divisional Commissioner further stated
as follows:
“7. I say and submit that after the receipt of the report from the
technical committee constituted by the deponent, the Collector
Osmanabad has submitted her report dated 03/06/2019,
wherein she stated that direction has been issued to the Chief
Officer of the Municipal Council Naldurg by her letter dated
03/06/2019.
I) To recover the excess amount paid to the contractors from the
concern contractors and further directed to black list that
contractors for Govt. work.
II) Further directions has been issued to the Chief Officer
Municipal Council Naldurg, to initiate action of criminal
prosecution against the persons who have committed the
irregularities.
III). Further direction has been issued to the effect that the
houses which are in repairable condition shall be allotted as
per the procedure laid down under the PMAY and the report
of the compliance shall be submitted. The copy of the report
dated 03/06/2019 submitted by the Collector Osmanabad is
annexed herewith and marked as EXHIBIT “R-5”.
8. I say and submit that in the light of above facts and
circumstances the deponent vide its letter dated 11/06/2019
directed the Collector Osmanabad to take steps for repairing the
houses which are in repairable condition and same should be
allotted to the eligible persons under PMAY scheme. That houses
which are not in repairable condition, by demolishing the same
new DPR plan should be prepared under the PMAY scheme and
the said houses should be allotted to the eligible person under the
said scheme. Further directions has also been issued for lodging
criminal prosecution against the persons responsible for the
irregularities in implementation of the scheme. The copy of the
letter dated 11/06/2019 is annexed herewith and marked as
EXHIBIT “R-6″. Hence this affidavit.”
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33. It is quite evident that the High Court did not by itself direct
initiation of investigation nor did it direct registration of an FIR. The
Divisional Commissioner had deposed those instructions had been given
to take such steps. The High Court, therefore, ordered that those steps be
taken to their logical end.
34. In the opinion of the court, whilst the reasoning for the impugned
judgment was undoubtedly published after a long and unexplained delay,
the effect of its operative directions were not to per se prosecute. It merely
required the Divisional Commissioner to take the necessary steps, which
were not limited to the launching of criminal prosecution but also taking
steps towards reconstruction of the flats for the intended beneficiaries. It
is further a matter of record that when the FIR was lodged in December
2019, all the present appellants – all of whom were not before the High
Court – were named as accused. Another important fact which requires to
be noticed is that several of these appellants had approached this Court
on the ground that their applications for anticipatory bail had been
rejected; they filed special leave petitions along with applications to file
for special leave since they were not parties in the High Court. Those
proceedings were entertained and this court had granted interim orders
protecting them from coercive action.
28
35. The material on record before the High Court in the form of
inspection report dated 20.04.2019 and further materials including the
Divisional Commissioner’s affidavit, showed irregularities of a severe
nature. The constructions, according to the reports, were sub-standard –
in respect of 100 such houses, so severe that the units were unusable.
The main objective of providing housing to 1206 eligible and deserving
families remains unfulfilled despite expenditure of substantial amounts.
In the circumstances, the argument of the appellants that they ought to
have been heard even before action was initiated, does not commend to
this Court; it is not sound. The five Judge Bench decision of this court in
Lalita Kumari v. Govt. of UP11 is clear in that if there are allegations with
respect to commission of cognizable offences, brought to the notice of the
police authorities, ordinarily an FIR has to be lodged. The Court held
that:
“119. Therefore, in view of various counterclaims regarding
registration or non-registration, what is necessary is only that
the information given to the police must disclose the commission
of a cognizable offence. In such a situation, registration of an
FIR is mandatory. However, if no cognizable offence is made out
in the information given, then the FIR need not be registered
immediately and perhaps the police can conduct a sort of
preliminary verification or inquiry for the limited purpose of
ascertaining as to whether a cognizable offence has been
committed. But, if the information given clearly mentions the
commission of a cognizable offence, there is no other option but
11
(2014) 2 SCC 1
29
to register an FIR forthwith. Other considerations are not
relevant at the stage of registration of FIR, such as, whether the
information is falsely given, whether the information is genuine,
whether the information is credible, etc. These are the issues
that have to be verified during the investigation of the FIR. At the
stage of registration of FIR, what is to be seen is merely whether
the information given ex facie discloses the commission of a
cognizable offence. If, after investigation, the information given
is found to be false, there is always an option to prosecute the
complainant for filing a false FIR.”
36. In the present case, there were materials suggesting serious
irregularities. The government allowed the Divisional Commissioner to
affirm in the affidavit filed by him on 12.06.2019 that criminal
proceedings would be initiated. In such circumstances, the observations
of the High Court to take the matter to the logical end have to be,
therefore, construed in that context. Whether the allegations are true or
whether the submissions on behalf of the petitioners justified their
conduct or omission is something upon which the High Court could not,
and in the opinion of this court correctly, did not comment. As far as the
FIR itself was concerned, the police had no choice given the imperative
nature of the law declared in Lalita Kumari (supra) where a preliminary
enquiry ordinarily is to be eschewed whenever cognizable offences are
reported.
37. In light of the above findings, this court is of the opinion that the
appeals have to fail. However, it is made clear that the observations made
30
by the High Court or the observations of this court, in the course of this
judgment shall not be construed as precluding any argument or
defences, the merits of any argument or defence that may be taken by the
appellants in the course of the criminal proceedings. The appeals are
accordingly dismissed but without any order on costs.
……………………………………………….J
[L. NAGESWARA RAO]
……………………………………………….J
[S. RAVINDRA BHAT]
New Delhi,
October 5, 2021.
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