JAGDISH NARAIN SHUKLA Vs. STATE OF UP AND ORS

CONSTITUTION OF INDIA 1949

Section 226 - Power of High Courts to issue certain writs

Tags PIL

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 9442 of 2016, Judgment Date: Sep 26, 2016

(Reportable)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9442/ 2016
(Arising out of SLP (Civil) No.31025/2013)

Jagdish Narain Shukla ….…..Appellant

Vs.

State of U.P. and Others. ……Respondents

J U D G M E N T

A.M. KHANWILKAR, J.

Leave granted.

2. This appeal challenges the decision of the Division Bench of the High
Court of Judicature at Allahabad, Lucknow dated 16th July, 2012 in Writ
Petition No.5744 of 2012.

3. The appellant had filed writ petition under Article 226 of the
Constitution of India as Public Interest Litigation praying for
implementation of the recommendation/report of the Lokayukta Uttar Pradesh,
dated 22nd February, 2012. Following reliefs were prayed in the said writ
petition:

“Wherefore, it is most respectfully prayed that the Hon’ble Court may
kindly be pleased, in the interest of justice, to

Issue a writ, order or direction in the nature of mandamus, directing the
Opposite Parties Nos.1, 2 and 3 to implement the recommendations/report of
the Opposite Parties No.4 by getting the issue enquired by the opposite
party Nos.7 and 8.

To issue a writ, order or direction in the nature of mandamus directing the
Opposite Parties No.7 and 8 to carry out an enquiry into the misdeeds of
the Opposite Parties Nos. 5 and 6, in terms of the recommendation of the
Opposite Party No.4.

Issue any other writ, order or direction as may be deem fit and proper by
this Hon’ble Court for giving just, proper and effective relief to the
petitioner.

Award the costs of the writ petition to the petitioner.

4. The Lokayukta had submitted the said report under the Provisions of
Section 12 (3) of the U.P. Lokayukta and Up-Lokayuktas Act, 1975 to the
Competent Authority for taking necessary action. The report was the outcome
of the complaint made by one Shri Jagdish Narain Shukla against Smt. Husna
Siddiqui, Member of Legislative Council and Sri Naseemuddin Siddiqui, the
then Cabinet Minister in U.P., respondent no.6 and 5 respectively. After
due enquiry the Lokayukta arrived at the following conclusion as noted in
the aforesaid report:

“On the basis of the prima facie evidences collected in the course of
investigation, I reach the conclusion that the delinquent public servants
had purchased land worth Rs.16,39,99,227/- (as per the market value) for a
meager price of Rs.46,32,600/- for their Private Society. They had also
purchased agriculture land worth Rs. One crore situated in Tindwari, Dist.
Banda for a meager price of Rs.4,50,000/-. They purchased Bungalow no.B-3,
Timaiya Road, Cantonment, Lucknow worth crores of rupees for just
Rs.50,00,000/-. They also purchased land worth Rs.3,60,00,000/- in village
Ladakapurwa, Dist. Banda for a meager price of Rs.5,50,000/- by way of
involving name of Smt. Upma Gupta, Smt. Akrami Begum and Smt. Arshi
Siddiqui. The Delinquent public servant also purchased 1.2370 hectare land
in the name of his son Sri Afzal Siddiqui in district Jyotibaphule Nagar
for setting up an industry A.Q. Frozen Food Pvt. Ltd. and investigation to
find out the exact cost of the land and the sources of income for purchase
the land is still in progress. It seems that the delinquent public servants
have purchased all the aforementioned assets through their income which
they earned from unknown sources because as per the income tax return of
both the delinquents, their taxable income for the last financial years
comes to Rs.1,93,85,196/-.

69. In view of the foregoing discussion, I am of the considered view that
this task should be entrusted to a specialized investigating agency with
the following tasks:

1. The agency should investigate the correctness/genuineness of
the donations/funds given by persons (whose names are indicated in the
enclosed list provided by the delinquents) by cheque, by demand drafts and
by cash to the Registered Society, namely, Q.F. Shikshan Sansthan, 49,
Shyam Nagar (Khurram Nagar) Lucknow and also to investigate the sources of
income of these individuals.

2. Q. F. Shikshan Sansthan, 49, Shyam Nagar (khurram Nagar)
Lucknow had acquired immovable property in Tehsil Fatehpur, Dist. Bararanki
through sale deeds. The agency should make inquiry about the persons who
sold land admeasuring 57 Bigha 18 Biswa 3 Biswansi to Smt. Husna Siddiqui,
Secretary, Q. F. Shikshan Sansthan.

3. All sale deeds of Village Nindora, Tehsil Fatehpur, Dist.
Barabanki executed during the last five years should be examined in order
to ascertain the fact as to who had sold their lands in village Nindora and
what was the actual sale considerations involved in these transactions and
from where the funds had come to these individuals.

4. 2.00 Hectare land in Gata no.3235 in village Ladkapurwa,
Pargana-Tehsil-Dist. Banda was purchased by Smt. Akrami Begum wife of Sri
Jamiruddin Siddiqui, Smt. Arshi Siddiqui, daughter-in-law of Sri Jamiruddin
Siddiqui, Smt. Arshi Siddiqui, daughter-in-law of Sri Jamiruddin Siddiqui
and Smt. Upma Gupta wife of Sri Krishna Chandra Gupta, an Engineer in
Nirman Nigam in the year 2008. The investigating agency should make
inquiries to find out the actual sale consideration involved in the
aforesaid transaction and what was the source of income for payment of the
said cost.

5. Investigation should be conducted to find out the source of
income which was used for buying the entire land in village Bachhrau,
Tehsil Dhanaura, Dist. Jyotibaphule Nagar for setting up A.Q. Frozen Food
Private Limited and raising building, etc. for the unit. It is also to be
investigated as to who all have invested their money in the land and
building of the Unit and what is their source of income.

70. In view of the foregoing analysis, I recommend that:-

1. The task of conducting investigation on the aforementioned
points should be entrusted to a Central Investigating Agency viz. Central
Bureau of Investigation or the Enforcement Directorate and further action
be taken in accordance with the result of the investigation.

2. Compliance report may be made available within one month.

Sd/- illegible
(Justice N.K. Mehrotra)
Lok Ayukt, U.P.

On the basis of the above conclusions, the Lokayukta made following
recommendations:
70. In view of the foregoing analysis, I recommend that:-

2. Compliance report may be made available within one month.

Sd/- illegible
(Justice N.K. Mehrotra)
Lok Ayukt, U.P.

5. The appellant verily believed that the Competent Authority was not
taking any steps to comply with the said recommendations of the Lokayukta,
for which, filed Writ Petition No.5744 of 2012 on 12th July, 2012 for the
reliefs as reproduced above.

6. The Division Bench of the High Court, however, held that the opinion
of the Lokayukta in the report cannot be construed to be final or
conclusive as it was a fact finding enquiry and a detailed enquiry is yet
to be made after affording opportunity of hearing to the person against
whom complaint is made. It further observed that the High Court ought not
to entertain petition for implementation of recommendations/orders of the
Lokayukta - as there is sufficient provision under the Act itself to get
the same implemented. The Court also opined that there was no element of
public interest in the grievances made by the appellant. On that finding
the writ petition filed by the appellant was dismissed in limine on 16th
July, 2012.

7. This decision has been challenged in the present petition filed under
Article 136 of the Constitution of India. This Court issued notice to the
respondents including the State Authorities. The respondent nos. 1 to 3
caused to file affidavit of Yatindra Kumar, Under Secretary in the
Vigilance Department of the State Government on 9th October, 2014. Besides
raising preliminary objection, it has been mentioned in this affidavit that
the Competent Authority has already taken a decision to enquire into the
aspects noted in the report of the Lokayukta through the State Vigilance
Establishment by way of an open vigilance enquiry, vide Government Order
dated 10th July, 2013.

8. The respondent no.8 Directorate of Enforcement caused to file
affidavit of Gurinder Singh Chawla, Deputy Director, Directorate of
Enforcement, Department of Revenue, Ministry of Finance Government of
India, New Delhi dated 4th March, 2015, stating that the Director of
Enforcement has been mandated to investigate contraventions relating to
Foreign Exchange Management Act, 1999 and offences of money laundering
under Prevention of Money Laundering Act, 2002. Further, it had no
authority whatsoever, to cause investigation in respect of offences under
the Prevention of Corruption Act, 1988 which ought to be investigated by
the appropriate enforcement agency, namely, Central Bureau of Investigation
or by State police. This affidavit also mentions that FIR No.385 of 2013
dated 6th July, 2013 registered at Police Station Kotwali Nagar, Banda,
U.P., for offences punishable under Section 13 (1) (e) read with Section
13(2) of the Prevention of Corruption Act, 1988 against respondent no.5 and
an ECIR/LKZO/03/2014 has been registered Lucknow Zonal Office for offence
of money laundering under the Prevention of Money Laundering Act, 2002. The
affidavit also mentions that an action of provisional attachment of
proceeds of crime or property involved in money laundering shall be
undertaken upon filing of a police report under Section 173 (2) of the Code
of Criminal Procedure 1973, by the law enforcement agency. The other action
taken for collection of Bank statements, income tax returns and property
details of respondent no.5 and his relatives by the respective law
enforcement agency has been requisitioned and the document so received are
being scrutinized.

9. Respondent no.7 C.B.I. has caused to file affidavit of Rajiv Kumar,
Deputy S.P., CBI, ACB, Lucknow, in February, 2014. It is stated in this
affidavit there is full-fledged State Vigilance Department under the State
Government to take follow up action on the basis of recommendations made by
the Lokayukta. Moreover, factual matrix of the present case does not
involve any complexity or interstate ramification which may require a
specialized investigation by the C.B.I., to be treated as rare and
exceptional case.

10. The respondent no.6 has filed reply affidavit on 23rd July, 2015, to
oppose this appeal. In that reply affidavit, it is stated that on a
complaint by one Mr. Ashish Sagar a vigilance investigation has been
commenced in respect of which FIR No.385/2013 has been registered and that
she has participated and fully cooperated in the said investigation. It is
prayed by the said respondent that the appeal does not merit interference.
The respondent no.5 has also filed an affidavit on same lines as
respondent no.6 dated 23rd July, 2015.

11. When this matter was heard on 22nd July, 2016 this Court passed the
following order:

“Heard.
Mr. Ravi Prakash Mehrotra, learned counsel for the 2 respondent-State of
Uttar Pradesh, submits that taking cognizance of the report submitted by
the Lokayukta, the State Government had referred the matter for
investigation by the State Vigilance establishment on 10th July, 2013. The
progress made in that regard is however not immediately known to him. He
seeks time to take instructions if any action has been taken pursuant to
the reference made by the Government to the Vigilance establishment. Our
attention is also drawn to the affidavit filed by respondent no.5, para (7)
whereof it is inter alia mentioned that FIR No.385/2013 dated 6th July,
2013 has been registered at the Police Station Kotwali Nagar, Banda, U.P.,
by the Vigilance establishment on the complaint of one-Mr. Ashish Sagar. It
is submitted that the allegations contained in the said complaint are
similar to the ones made in the report submitted by the Lokayukta. Mr.
Mehrotra does not have any instruction as to the progress made in
connection with the said FIR also. He may, therefore, file a status report
not only in regard to the reference made by the State Government to the
Vigilance establishment, pursuant to the Lokayukta report, but also as
regards the progress made in FIR No.385/2013 by the police station
concerned. Mr. Mehrotra also to take instruction whether any FIR has been
registered against respondents No.5 and 6 in any other police station and
if so the progress made in those FIRs. In addition, Mr. Mehrotra will take
instruction and state whether the State Government proposes to make a
reference to the 3 enforcement directorate as recommended by the Lokayukta
in his report, in case such a reference is not already made. Mr. P.K.
Mullick, learned counsel for the Enforcement Directorate, submits that
Enforcement Directorate has registered ECIR on the basis of FIR No.385/2013
but no enquiry has been instituted nor any reference made to the
Enforcement Directorate by the State Government pursuant to the report of
the Lokayukta. Mr. Mehrotra shall do the needful within two weeks from
today. Post after two weeks.

12. Pursuant to the aforesaid order the Under Secretary in the Vigilance
Department at Lucknow Sri Yatindra Kumar, has filed affidavit sworn on 9th
August, 2016, disclosing the progress of the respective case initiated
against respondent nos.5 and 6. The said affidavit reads thus:
“3. That, in respectful compliance of the said order dated 22.07.2016
passed by this Hon’ble Court, the status of various proceedings against
respondent Nos.5 and 6 in the present petition, is as under:

Progress regarding reference to the State Vigilance Establishment

4. That, in this regard it is stated that a complaint was filed before
the Lokayukta Establishment Uttar Pradesh by Sri Jagdish Narain Shukla of
Lucknow against Smt. Husna Siddiqui, Member of U.P. Legislative Council and
Sri Naseemuddin Siddiqui, ex-Cabinet Minister of Uttar Pradesh, in respect
of which after conducting an enquiry, the Hon’ble Lokayukta vide letter
dated 22.02.2012, submitted Report no.03-2012 to the Competent Authority,
Government of U.P.

After due consideration of the said report and recommendations of the
Hon’ble Lokayukta, vide order dated 10.07.2013, it was directed by the
State Government that open enquiry by conducted against the said Smt. Husna
Siddiqui and Sri Naseemuddin Siddiqui by the U.P. Vigilance Establishment,
following the said report by the Hon’ble Lokayukta.

In compliance with the said order dated 10.07.2013 by the State
Government, whereby open enquiry was directed to be conducted, the
Vigilance Establishment completed the enquiry and report was submitted to
the State Government vide letter dated 29.07.2015.
In the meanwhile, various representations/affidavits were submitted
to the State Government by Smt. Husna Siddiqui and her family members in
respect of said open enquiry on 04.08.2015, 6.8.2015, 17.8.2015, 18.8.2015,
19.8.2015, 20.8.2015, 21.8.2015, 28.8.2015, 4.9.2015, 10.9.2015 and
14.9.2015, wherein several important issues were sought to be raised in
relation to the open enquiry.

The open enquiry report submitted by the Vigilance Establishment, and
the representations/affidavits by Smt. Husna Siddiqui and her relations,
were comprehensively considered by the State Government, and after
comprehensive consideration, after taking cognizance of all the facts
mentioned in the aforesaid representations/affidavits in relation to the
open enquiry conducted by the Vigilance Establishment, it was found
justifiable to get a factual report in regard thereto, after carefully
examining/scrutinizing the documents enclosed with the said
representations/affidavits. In this view of the matter as aforestated, the
State Government vide D.O. letter no. VIP/36/39-4-15-50H (2)/2013 dated
26.2.2016, has directed the Vigilance Establishment to submit a factual
report in regard thereto after enquiring into the matter in detail.

Current status of the enquiry

5. That, it has been informed by the U.P. Vigilance Establishment that
for the purpose of verification of documents in the enquiry, the revenue
records in the districts of Lucknow, Barabanki, Banda and Jyotiba Phule
Nagar and records of related offices as well as records of different banks,
and verification/examination of the concerned bank accounts, has to be
done. Moreover, the 11 representations and 8 affidavits (totaling 55 pages)
submitted by Smt. Husna Siddiqui and members of her family, as well as
documents enclosed with the said representations (approx. 1068 pages), have
to be verified. Additionally, enquiry/statements of persons giving money
and other persons, has to be done, owing to which the enquiry is taking
time. At the present time, supplementary enquiry is in progress, which
shall be completed at the earliest and report submitted to the State
Government.

Progress in F.I.R. no. 385/13 dt. 6.7.2013 at P.S. Kotwali, Banda

6. In regard to above, the factual position is that a complaint was
filed against Sri Naseemuddin Siddiqui, former Minister, Government of U.P.
by Sri Ashish Sagar Dixit, District Banda, before the Lokayukta
Establishment, Uttar Pradesh. Following the same, the Hon’ble Lokayukta
after conducting his enquiry, submitted Report no.05-2012 vide letter dated
24.8.2012 to the Competent Authority of the U.P. Government.

After due consideration of the said report dated 24.8.2012 of the
Hon’ble Lokayukta, the State Government vide order dated 4.10.2012 directed
the U.P. Vigilance Establishment to conduct open enquiry against Sri
Naseemuddin Siddiqui, in regard to recommendation no.1 of the report of the
Hon’ble Lokayukta.

In compliance with the State Government’s order dated 4.10.2012
directing an open enquiry, the Vigilance Establishment has completed the
said open enquiry and its report was submitted to the State Government vide
letter dated 29.4.2013. On account of the fact that the expenditure was
found more than income in the open enquiry, hence it was recommended that a
criminal case be registered and the same investigated.

After examination of the said open enquiry report, in terms of the
recommendation by the Vigilance Establishment, the State Government vide
order dated 2.7.2013 directed the U.P. Vigilance Establishment to get a
case registered under section 13(1) (e) read with section (13) (2) of the
Prevention of Corruption Act 1988 and the same investigated. In
continuation with the said direction of the State Government dated
2.7.2013, Case Crime no. 407/13 under section 13 (1) (e) read with section
13 (2) of Prevention of Corruption Act, 1988 was registered on 6.7.2013 by
U.P. Vigilance Establishment, Allahabad Sector, at P.S. Kotwali, District
banda, against Sri Naseemuddin Siddiqui, the chick no. of which as
385/2013. It is stated that after completion of investigation in the
aforestated Crime no.407/13, the Vigilance Establishment vide letter dated
29.7.2015 submitted its investigation report to the State Government.

In the meanwhile, Sri Naseemuddin Siddiqui and his family members
preferred several representations in relation to the said investigation, on
31.7.2015, 6.8.2015, 14.8.2015, 17.8.2015, 18.8.2015, 19.8.2015, 20.8.2015,
21.8.2015, 28.8.2015, 4.9.2015, 10.9.2015, 14.9.2015 and 31.1.2016, to the
State Government, wherein several important issues were raised in regard to
the investigation report.

It is further stated that the investigation report submitted by the
Vigilance Establishment, and the representations/affidavits preferred by
Sri Naseemudin Siddiqui and his family members, were comprehensively
examined by the State Government, and after due consideration, it was
considered appropriate to get a factual report in relation to the said
investigation, in regard almost 14 representations and 8 affidavits (total
80 pages) and its enclosures (total 1371 pages) submitted on different
dates by Sri Naseemuddin Siddiqui and his family members. It was directed
that factual report be made available after getting examined by the
Vigilance Establishment, the fact of income and expenditure from valid
sources, by the State Government vide D.O. letter no.VIP-3/39-4-16-50
N(2)/2012 TC dated 26.2.2016.

Current Status of Investigation

7. That, it has been informed by the U.P. Vigilance Establishment that
for the purpose of verification of documents in the said enquiry, the
revenue records of District Lucknow, Banda, Gautambudh Nagar, Barabanki,
and records relating to the offices of various establishments, as well as
verification/examination of records relating to different banks and related
bank accounts in the concerned districts, have to be examined and verified.
Moreover, a total of 14 representations and 8 affidavits (total 80 pages)
submitted by Sri naseemuddin Siddiqui and his family members as well as
documents enclosed therewith (total 1371 pages) have to be verified.
Additionally, the enquiry/statements of persons who had given money as well
as statements of other concerned persons have to be recorded, due to which
the enquiry is taking time. Presently, supplementary investigation is being
conducted, which is likely to be completed shortly and report submitted to
the State Government.

Other proceedings against respondent nos.5&6

8. That, it has been intimated by the Vigilance Establishment that in
compliance with the State Government’s order dated 30.11.2013 relating to
investigation of corruption and irregularities committed in the
construction of monuments and gardens, as also supply of sand stone in the
cities of Lucknow and Noida between 2007 to 2011, Crime No.1/2014 under
Sections 409/120-B PIC and Section 13(1)(e) read with Section 13(2) of
Prevention of Corruption Act, 1988, has been registered by the Vigilance
Establishment at P.S. Gomti Nagar Lucknow, wherein Sri Naseemuddin Siddiqui
is also an accused person. Considerable progress has been made in the
investigation and spot inspection of 5 construction sites (1. Ambedkar
Samajik Parivartan Sthal, 2. Eco Park, 5. Noida Ambedkar Park) and mining
sites, have already been conducted. Opinions of various experts is
remaining. Statements of a total of 170 witnesses have already been
recorded in the investigation, and most of the documents have been
collected. The work relating to collection of the remaining documents and
evidence is being done at a fast speed. The investigation in question is
progressing speedily, which shall be completed at the earliest and report
submitted to the State Government.

IV. Proceedings before Enforcement directorate
9. That, in this regard the Vigilance Establishment has informed that
with reference to letter dated 29.1.2014 by the Enforcement directorate,
Government of India, requiring information and documents, by letter dated
31.1.2014, a copy of the First Information Report (Case Crime no.407/13),
has been sent to the Joint Director, Enforcement Directorate, Government of
India, 16 Ashok Marg, Lucknow.”

14. It is submitted by the counsel appearing for the concerned State
agencies that having regarding to the voluminous documents and more
particularly the need to verify the correctness of the information made
available during the investigation/enquiry, it would take some more time to
complete the investigation/enquiry in the respective cases. The counsel
appearing for the appellant, however, submits that the law enforcement
agencies have not done enough and are responsible for delaying the
investigation/enquiry for reasons best known to them, which inevitably
would benefit respondent nos. 5 and 6. The counsel for the respondent
nos.5 and 6 has refuted this veiled attack on respondent nos.5 and 6 of
being responsible for delay in the enquiry. He submits that these
respondents have extended full cooperation to the concerned agencies thus
far and would continue to do so even in future. It is unnecessary for us to
dilate on this aspect.

15. As aforesaid, the relief in the writ petition was limited to
directing the Competent Authority to act upon the recommendations made by
the Lokayukta. That relief has worked out in view of the direction issued
by the Competent Authority to investigate/enquire into the factual matrix
noticed in Lokayukta’s report. Further, the law enforcement agencies have
moved into action and have collected information and material including
with reference to the representations and affidavits received in the course
of the said investigation/enquiry. We may, therefore, accede to the request
of the law enforcement agencies to give them some more time to complete the
investigation/enquiries in relation to the acts of commission and omission
of respondent nos.5 and 6 or any other person(s) privy thereto.

16. Considering the fact that the law enforcement agencies are on their
job for quite sometime, we express a sanguine hope that they would complete
the investigation/enquiry at the earliest and not later than six months
from today and take the same to its logical end in accordance with law.

17. We make it clear that we are not expressing any opinion on the merits
of the matters under investigation/enquiry or the defence that may be
available to respondent nos. 5 and 6 in any proceedings to be instituted
against them in relation to the said matters.

18. This appeal is disposed of in the above terms. No costs.

…………………………..CJI
(T.S.Thakur)

…………………………….J.
(A.M.Khanwilkar)

New Delhi,
26th September 2016

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