Harihara Subramoney v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 24[TH] DAY OF MARCH 2023 / 3RD CHAITHRA, 1945 ## WP(C) NO. 23011 OF 2016 ## PETITIONER: HARIHARA SUBRAMONEY, AGED 46 YEARS S/O S. NEELAKANTA IYER,TC 50/825 (2) MARUTHI, KALADI, KARAMANA P.O,THIRUVANANTHAPURAM 695 002. BY ADVS.SRI.BLAZE K.JOSE SMT.K.J.JISMA SMT.RESHMA G.MENON ADV.KAMALA ## RESPONDENTS: - 1 STATE OF KERALA, REPRESENTED BY SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT (NATIONAL HIGHWAYS) SOUTH CIRCLE, OPP. LOURDE CHURCH, PMG-PATTOM ROAD, THIRUVANANTHAPURAM. PIN-695 004. 3 SUPERINTENDING ENGINEER PUBLIC WORKS DEPARTMENT (NATIONAL HIGH WAYS) SOUTH CIRCLE, OPP. LOURDE CHURCH, PMG-PATTOM ROAD, THIRUVANANTHAPURAM. PIN-695 004. BY ADVS.SMT.ANU GEORGE SRI.SUJITH MATHEW JOSE SRI.SIBY CHENAPPADY SMT.RENU. D.P., SC, LOK AYUKTA SRI.TEKCHAND V, SR.G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.23011 of 2016 :: 2 :: ## JUDGMENT Dated this the 24[th] day of March 2023 ## S.MANIKUMAR, C.J. Petitioner is a contractor, who was awarded the tender to collect toll at Akkulam Bridge on NH 47 in Thiruvananthapuram – Neyyattinkara Bye pass road by the respondents for the year 2015-16. Petitioner has approached this court being aggrieved by Ext.P9 order passed by the Upa Lok Ayukta in suo motu complaint No.1115/2014 dated 29.6.2016. 2. By Ext.P9 order, Upa Lok Ayukta held that an amount of Rs.86,14,317.85/- is caused to be deposited by the contractor within ten days and in case of failure, the collection of toll at the Akkulam Toll Bridge shall be caused to be stopped by the Superintending Engineer. It is also submitted by the petitioner that the impleading petition and review petition filed by him were not considered by the Upa Lok Aykta. 3. Adv.Kamala, learned counsel appearing for the petitioner submitted that a suo motu complaint is actually W.P.(C)No.23011 of 2016 :: 3 :: not maintainable as per the provisions of the Kerala Lok Ayukta Act, 1999. According to the petitioner the Lok Ayukta or Upa Lok Ayukta has no power to conduct any investigation with respect to any matter without a complaint as envisaged under the Rules. The Lok Ayukta would, thus, have no suo motu powers to conduct any investigation. Hence this writ petition. 4. Reliefs sought for in the writ petition are as follows: “a) to issue a writ of certiorari or any other writ, order or direction calling for records leading to Ext.P9 and quash the same. b) to issue a writ of mandamus or any other appropriate writ, order or direction commanding the Hon’ble Upa Lok Ayukta to consider the Ext.P6 impleading petition and Ext.P11 review filed by the petitioner in Complaint No.1115/2014, against Ext.P9 order as expeditiously as possible at any rate within reasonable time fixed by this Hon’ble Court. c) to issue a writ of mandamus or any other appropriate writ, order or direction commanding the Hon’ble Upa Lok Ayukta to keep in abeyance the Ext.P9 order till Ext.P11 review is heard and dispose of by the Lok Ayukta. d) to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to terminate the petitioner from collection of toll at Akkulam Bridge, Thiruvananthapuram on the basis of Ext.P9 order till the disposal of Ext.P11 review by the Lok Ayukta.” W.P.(C)No.23011 of 2016 :: 4 :: 5. The question as to whether Kerala Lok Ayukta has powers to initiate suo motu proceedings, has been considered by a Hon'ble Division Bench of this Court in Ramachandran Master v. Kerala Lok Ayukta reported in 2006 (4) KLT 166 wherein, the Division Bench in paragraph Nos. 18, 23 and 27 ordered thus:- “18. The cumulative reading of the provisions of the Act and Rules as referred to above would clearly manifest that the Lok Ayukta is the person appointed under the Act to conduct investigations and inquiries, has necessarily to act under the provisions of the Act. When the Lok Ayukta may act on a complaint received by him or Upa-Lok Ayukta, the complaint has to be such which is under the Act and sub-s.(2) of S.9 dealing with provisions related to complaints and investigations clearly mentions that such a complaint has to be in such form and in such manner as may be prescribed.The word ‘prescribed’ has been defined in clause (n) of S.2 to mean prescribed by Rules made under the Act. The Government, by virtue of powers conferred upon it under S.23 of the Act, has prescribed the form and manner in which a complaint has to be made. The same is as per the Schedule reproduced above. The complaint which may be presented to the Lok Ayukta under section has to be, as far as practicable, in accordance with the form set out in the Schedule. It is further to be accompanied by an affidavit and further that a defective complaint, if not cured, has to be rejected. Based on the provisions of the Act and Rules as produced above, this Court is in a position to return a firm finding that the Lok Ayukta can enter upon an investigation only on a written complaint and further that such a complaint, as far as practicable,has to be as W.P.(C)No.23011 of 2016 :: 5 :: provided under the Schedule, which not only contains a declaration to the effect as mentioned above, but has also to be supported by an affidavit. A complaint which may not comply with the requirements of the Act and Rules cannot be entertained and thus has to be rejected, even though by virtue of the proviso appended to S.9 an opportunity to cure the defects has to be given to the complainant. If that be so, it has to be held further that the Lok Ayukta would have no power to conduct any investigation with respect to any matter without a complaint as envisaged under the rules. The Lok Ayukta would, thus, have no suo motu powers to conduct any investigation. It has no jurisdiction to investigate grievance sought to be ventilated or projected in anonymous or pseudonymous letters, newspaper reports or a letter of complaint as well. We may mention that during the course of arguments the contention raised by the learned counsel representing the petitioners that the provisions contained in the Act and Rules would not confer any suo motu power on the Lok Ayukta to proceed to investigate was not much disputed, even though what was sought to be projected by the learned counsel representing the Lok Ayukta was that the procedural wrangles cannot be permitted to thwart the object of the legislation which is to eradicate corruption and mal administration in public life. 23. This Court is of the considered opinion that whereas it is indeed the legislative intent in enacting the Act of 1999 to eradicate corruption as also mal administration in public life, the object of the Act is also that the faith of the people in the administration is not lost and innocent politicians or bureaucrats are not subjected to humiliation and harassment. The Lok Ayukta, in our considered view, would have no jurisdiction to enter into inquiry or investigation when it may proceed on the basis of the complaint received from any person unless the complaint is in the form and manner as prescribed in the Rules fully detailed above. No W.P.(C)No.23011 of 2016 :: 6 :: doubt, a defective complaint can be rejected if it is not cured after giving the complainant a chance to do so, but, if the same is not either in the prescribed form with the declaration as mentioned above and further supported by an affidavit or if not cured as mentioned above, there would be no jurisdiction with the Lok Ayukta to proceed in the matter. If this safeguard is not strictly adhered to, the forum of Lok Ayukta may become a store house of unnecessary, baseless, false and frivolous litigations. There is no dearth of persons actuated because of enmity, jealousy and other human evil propensities in lodging false complaints. It would be travesty of justice if on the basis of such complaints innocent office holders are maligned and their reputation damaged beyond redemption. 27. In view of the discussion as made above, we hold that the Lok Ayukta exercising powers under the Act of 1999 has no suo motu powers to conduct any investigation with regard to matters complained of and further that no inquiry or investigation can be entered by the Lok Ayukta on an anonymous or pseudonymous letters, newspaper reports or even a letter of complaint which may be received without complying with the necessary procedure as enshrined under the various provisions of the Act and Rules of 1999. While holding so, we may, however, observe that in the event the letter containing allegations is not as envisaged under the Act, the Lok Ayukta may ask the complainant, if the complaint is not anonymous or pseudonymous but by a known person, to cure the defects or support the contents of his complaint in the manner mentioned in the format of the Rules reproduced above and if the defects may be cured so as to constitute a ‘complaint’ within the meaning of the Act and Rules, the Lok Ayukta would have jurisdiction to proceed with the matter. He may also proceed on the basis of newspaper reports if the Editor or the News Correspondent through whom the news has been published, is called and asked to give complaint as envisaged in the Rules supported W.P.(C)No.23011 of 2016 :: 7 :: by a declaration and affidavit. In view of our finding that the Lok Ayukta has no power to inquire or investigate or to commence proceedings suo motu or on the basis of any anonymous or pseudonymous letters or complaints which are not as per format and are not even cured after giving a chance to do so, the proceedings before the Lok Ayukta on the basis of newspaper reports and letter of complaint, are quashed.” 6. On the facts and circumstances of the case, it could be deduced that without any complaint filed by anybody, Lok Ayukta ought not have issued Ext.P9 order and in such circumstances, the decision cited (supra) squarely applies to the cases on hand. Following the same, Ext.P9 order is set aside. Accordingly, the writ petition is allowed. SD/S.MANIKUMAR CHIEF JUSTICE SD/MURALI PURUSHOTHAMAN JUDGE jes W.P.(C)No.23011 of 2016 :: 8 :: ## APPENDIX ## PETITIONER’S EXHIBITS: - EXHIBIT P1 A TRUE COPY OF THE SELECTION NOTICE DATED 23.7.2014 OF THE BY THE 3RD RESPONDENT. - EXHIBITP2 A TRUE COPY OF RELEVANT PAGES OF THE TENDER NOTIFICATION NO. 2/SENH/SC/2015-16. - EXHIBITP3 A TRUE COPY OF THE SELECTION NOTICE ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT DATED 10.9.2015. - EXHIBITP4 A TRUE COPY OF THE AGREEMENT NO. 6/SENH/SC/201516 DATED 15.9.2016. - EXHIBITP5 A TRUE COPY OF THE REGISTRAR OF THE RESPONDENT EVIDENCING THE PAYMENT FOR THE PERIOD FROM 1.8.2015 TO 15.9.2015 - EXHIBITP6 A TRUE COPY OF THE IMPLEADING PETITION FILED AS I.A. NO. 871/2015 IN COMPLAINT NO.115/2014. - EXHIBITP7 A TRUE COPY OF THE ORDER NO. W3D1-205/2016 DATED 25.4.2016. OF THE 3RD RESPONDENT. - EXHIBITP8 A TRUE COPY OF THE SUPPLEMENTARY AGREEMENT DATED 25.5.2016. - EXHIBITP9 A TRUE COPY OF THE ORDER IN SUO MOTO COMPLAINT NO. 1115/2014D DATED 29.6.2014 BY THE UPA LOK AYKA. - EXHIBITP10 A TRUE COPY OF THE REGISTRAR OF THE 3RD RESPONDENT EVIDENCING THE PAYMENT FOR THE PERIOD FROM 1.4.2016 TO 30.6.2016. - EXHIBITP11 A TRUE COPY OF THE REVIEWE PETITION FILED BEFORE THE HON'BLE LOK AYKTA. - EXHIBITP12 A TRUE COPY OF THE PETITION TO KEEP IN ABEYANCE FILED BEFORE THE HON'BLE LOK AYUKTA. // TRUE COPY // P.S. TO JUDGE