Rajasthan High Court - Jaipur
Sawai Singh Son Of Shri Dal Singh vs The State Of Rajasthan, Through The ... on 5 September, 2018
Bench: Chief Justice, G R Moolchandani
`HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B.Civil (PIL) Writ Petition No.17472/2018
Dr. Vibhuti Bhushan Sharma S/o Shri Radhey Shyam Sharma,
aged about 46 years, resident of 239, Parshwanath Nagar, Near
Hotel Fly View, Terminal No.1, Airport Sanganer, Jaipur-302029.
----Petitioner
Versus
1. The State of Rajasthan through Chief Secretary, Government
of Rajasthan, Jaipur.
2. The Principal Secretary, P.W.D., Government of Rajasthan,
Jaipur.
3. The Chief Engineer and Additional Secretary, Public Works
Department, Jaipur.
4. Bhartiya Janta Party, through State President Shri Madan Lal
Saini, Party Office Sardar Patel Road, Jaipur.
----Respondents
D.B. Civil (PIL) Writ Petition No. 17830/2018 Sawai Singh
----Petitioner Versus The State of Rajasthan & ors.
----Respondents _____________________________________________________ For Petitioner (s) : Dr.Vibhuti Bhushan Sharma, petitioner in person.
Mr.Madhav Mitra with Mr.Nishant Sharma Mr.G.S.Bapna, Senior Advocate with Mr.Sarvesh Jain For Respondent(s) : Mr.N.M.Lodha, Advocate General assisted by Mr.Sheetanshu Sharma & Mr.Kunal Jaiman.
For Respondent No.4 Mr.A.K.Sharma, Senior Advocate assisted by Mr.Vishnu Kant Sharma.
Mr.Rajendra Prasad Sharma, AAG assisted by Mr.M.S.Sharma Ms.Prachi Pareek for Mr.Bharat Vyas _____________________________________________________ (2 of 12) HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE G R MOOLCHANDANI Judgment Reserved on 27.08.2018 Pronounced on 05.09.2018 Per Hon'ble the Chief Justice
1. Dr.Vibhuti Bhushan Sharma and Shri Sawai Singh have filed the two above captioned writ petitions claiming to espouse a public cause.
2. For the factual contours of the issues raised in the two writ petitions we would be referring to the pleadings and annexures in the writ petition filed by Dr.Vibhuti Bhushan Sharma.
3. Elections to elect members of the Legislative Assembly in the State of Rajasthan have to take place by the end of current calendar year. To reach out to the voters, the Bhartiya Janta Party, which is in majority in the Assembly as of today and is the ruling party, has organized Gaurav Yatras i.e. direct contact with the voters by means of road-shows. Advertisements issued in the newspapers on behalf of the Bhartiya Janta Party inform the voters that spread over a period of 40 days, covering 165 constituencies, a total distance of 6054 km would be covered by leaders of the Bhartiya Janta Party during which 134 public meetings would be held.
4. The origin of the two writ petitions is an office order No.Sec.I/A/2018/180 dated 1.8.2018 issued by the Chief Engineer, Public Works Department, Rajasthan, Jaipur. The office (3 of 12) order is in Hindi and translated, it records that the Hon'ble Chief Minister of Rajasthan shall inaugurate the Gaurav Yatra from 4.8.2018. During the Gaurav Yatra the Hon'ble Chief Minister shall be addressing public meetings for which tent, sound system and stage would be required. These would be provided by the Public Works Department. Names of Nodal Officers have been indicated in the office order, with the direction that it would be their responsibility to ensure compliance with the said office order.
5. A reference in the pleadings is also made to newspaper reports, as per which the Directorate of Public Relations has been directed to coordinate with the media to ensure adequate publicity to not only the schemes of the Government but also the Gaurav Yatra.
6. Replying to the writ petition, the stand of the State of Rajasthan is that whenever the Chief Minister travels protocol and security arrangements have to be borne by the State. The travel may be official or personal. Thus, money spent on protocol and security arrangement have to be borne by the State and cannot be given the colour of expenditure incurred towards a political rally. Accepting that the office order dated 1.8.2018 could not have been issued, it is pleaded that on 6.8.2018 the said office order has been withdrawn.
7. Dr.Vibhuti Bhushan Sharma thereafter filed Misc.Application No.3/2018 in which it is pleaded that on 2.8.2018 the Information and Public Relations Department, Government of Rajasthan, Jaipur issued an order recording therein that the Chief Minister would be (4 of 12) holding a road-show in Udaipur between 4 th to 10th August, 2018. During the tour Shri Kamlesh Sharma, Dy.Director, Banswara in conjunction with the officers in the District shall be responsible for media management and alongwith the road-shows shall give publicity to the functions organized by the State to educate the gathering regarding social welfare programmes of the Government.
8. In the application reference is also made to another office order dated 3rd August, 2018 issued by the Department of Information and Public Relations giving details of the arrival of the Chief Minister, commencement of the Gaurav Yatra, time of address of the public gathering etc.
9. It is pleaded that the said two office orders clearly show involvement of the Government and expenditure incurred by the Government for the Gaurav Yatra.
10. Thereafter another Misc.Application No.8/2018 was filed by Dr.Vibhuti Bhushan Sharma making a reference to an undated office order No.10/2018-2019 issued by the Executive Engineer, Public Works Department, Bhinmal. It is a notice inviting tenders listing eight works. Bids have been invited. The relevant part of the NIT reads as under:-
S.No. Name of the work Estimated Security deposit Tender Tender sale Tender receipt/ Period of cost (in date completion of lacs) 2% 0.5% fee opening date work 1 Jalore Bhinmal 4.90 9800 2450 500 13.08.2018 13.08.2018 7 days Raniwada Road (State Highway-31) Km 44/0 to 79/0 2 Jalore Bhinmal 4.90 9800 2450 500 13.08.2018 13.08.2018 7 days Raniwada Road (5 of 12) (State Highway-31) km 79/0 to 85/0 3 Additional work on 4.90 9800 2450 500 13.08.2018 13.08.2018 7 days Kodi Chitrodi Rajpura Sundhamata Jaswantpura Road km 0/0 to 12/0 4 Additional work on 4.90 9800 2450 500 13.08.2018 13.08.2018 7 days Kodi Chitrodi Rajpura Sundhamata Jaswantpura Road km 12/0 to 24/0
5. Road parking and 4.90 9800 2450 500 13.08.2018 13.08.2018 7 days zebra crossing thermo plast Revdar Jaswantpura Bhinmal Bagoda Chochwa Phanta road km 65/0 to 130/0
6. Work for erection of 4.90 9800 2450 500 13.08.2018 13.08.2018 7 days platform for meeting in Sundamata Talhati
7. Work for erection of 4.90 9800 2450 500 13.08.2018 13.08.2018 7 days platform for meeting in Ramsin/Bhinmal 8 Road repair work 4.90 9800 2450 500 13.08.2018 13.08.2018 7 days Bhinmal Punasa Thobau road km 0/0 to 31/0
11. With respect to the said office order it is pleaded that the same reinforces the plea in the writ petition that public money is being spent for the Gaurav Yatra.
12. Another Misc.Application No.10/2018 was filed thereafter annexing therewith a tender notice issued by the Executive Engineer, Public Works Department, Chohatan inviting bids to execute works listed therein including providing barricades during the Gaurav Yatra.
(6 of 12)
13. Another tender notice issued by the same officer inviting bids for water proofing of tents during the Gaurav Yatra is enlisted. Bids are invited by the Public Works Department and we find from the tender document that the work to be executed is of water proofing tentage and german hanger.
14. A consolidated reply has been filed by the State to the three applications pleading that during the Gaurav Yatra, political meetings would be held by the Hon'ble Chief Minister for which the State is not incurring any expenditure. Taking advantage of the presence of the Chief Minister, the Government is organizing exhibitions to make aware general public in Rajasthan regarding social welfare schemes of the Government.
15. In the reply filed by the Bhartiya Janta Party it is pleaded that expenses for stage, tents, generators, coolers and sound system have been borne by the party. Details of the bills and invoices raised by the service providers have been provided in paragraph 1 of the preliminary submissions in the reply.
16. It is in this factual matrix that the issue raised in the two writ petitions needs to be decided. Should the Government be restrained from incurring any expenditure for any functions during the Gaurav Yatra?
17. In the decision reported as (2014) 6 SCC 552 Common Cause V/s Union of India, the Supreme Court was considering of public funded Government advertisement campaigns. Needless to state the political party in power was charged with public fraud by misusing public funds for political motives because it was noted (7 of 12) that on the eve of elections the Chief Minster and the Ministers of the Government in power would undertake public awareness programmes in which various achievements of the Government were highlighted. Recognizing the right of the Government to give publicity to social welfare schemes of the Government and also to highlight what has been achieved by the Government, the Court frowned upon publicity given in a manner which would benefit a private party i.e. give credit to individuals as members of a political party for the achievements by the Government as distinct from highlighting the achievements of the Government.
18. The said decision was followed by another decision dated 13 th May, 2015 in Writ Petition (Civil) No.13/2003 Common Cause V/s Union of India. Common Cause had filed the public interest litigation seeking to restrain the Union of India and the State Governments from using public funds on Government advertisements which were primarily intended to project individual functionaries of the Government or a political party, as claimed in the writ petition. The case of the common cause was that under the garb of communicating with the people in many instances, undue political advantage and mileage was sought to be achieved by personifying individuals and crediting such individuals or political leaders being responsible for various Government achievements and progressive plans. Referring to the earlier decision, the Supreme Court recognized that there could be no quarrel with the proposition that primary purpose of a Government advertisement is to use public funds to inform the public of their rights, obligations and entitlements as well as to (8 of 12) explain Government policies, programmes, services and initiatives. The Court acknowledged the fact that the dividing line between permissible advertisements that are a part of Government messaging and advertisements vis-a-vis those which are politically motivated at times get blurred. To draw a clearly identifiable line the Supreme Court spelt out five principles in paragraph 11 of its opinion:-
"i) advertising campaigns are to be related to government responsibilities,
ii) materials should be presented in an objective, fair and accessible manner and designed to meet objectives of the campaign,
iii) not directed at promoting political interests of a Party,
iv) campaigns must be justified and undertaken in an efficient and cost-effective manner and
v) advertisements must comply with legal requirements and financial regulations and procedures."
19. The Government is morally as well as legally accountable to the common people. So, any act by disguise would be a colourable exercise of power.
20. In the instant case, the Government admits that during the Gaurav Yatra sponsored by the Bhartiya Janta Party the Chief Minister would be addressing public gatherings and this would be a political function. But it is pleaded that taking advantage of the Chief Minister's presence official functions for stone laying, inauguration, release of various projects of the Government etc. are also being organized, for which the expenses shall be incurred by the State.
(9 of 12)
21. As regards the State incurring expenditure for protocol and security of the Chief Minister is concerned, learned counsel for the writ petitioners had no quarrel therewith.
22. If it is alleged that the power is being exercised colourably the veil has to be lifted by the Court to find out as to what is the actual reach of action by the State.
23. From the facts noted hereinabove it is clear that the office order dated 1.8.2018, admitted in the reply to be erroneously issued and withdrawn, was requiring the Public Works Department to incur expenditure for political rallies in the form of providing tent, sound system, stage during political rally. It is apparent that the initial attempt by the Government was a palpable abuse of the executive power of the State to directly help a political party i.e. the Bhartiya Janta Party.
24. The second office order dated 2.8.2018, which has still not been withdrawn, issued by the Department of Information and Public Relations is in vernacular and translated, it reads as under:-
"The Hon'ble Chief Minister shall tour District Udaipur from 4 th to 10th August, 2018. During the tour programme Shri Kamlesh Sharma, Dy.Director, Banswara, alongwith other officers of the District would be responsible for media management not only to give publicity to the tour programme but even to public welfare schemes and programmes of the Government."
25. The use of the words 'sath-sath' in the office order dated 2.8.2018 is clearly indicative of the fact that the Public Relations Officers would be coordinating media publicity not only to the (10 of 12) political yatra i.e. Gaurav Yatra of Chief Minister but even publicity to the social welfare schemes of the Government.
26. We over look notice inviting tenders concerning barricades for the reason they may relate to the security of the Chief Minister. But the tenders for water proofing and tentage are so general in nature that it is impossible to find out whether the same relate to the canopy at the dais wherefrom the Chief Minister would be addressing public gathering during the road-shows or the same relate to exhibition organized by the Government. We lodge a caveat here.
27. Pertaining to launching of social welfare programmes and inauguration of exhibitions during the course of the Gaurav Yatra we shall elaborate a little further.
28. In this context, office order No.10/2018-2019 is telling. It invites bids for different segments of roads from km 44 to 85 on the Bhinmal-Raniwada State Highway and km 0 to km 12 on Sundhamata-Jaswantpura segment of the Highway. Description of the works for which bids have been invited has not been disclosed in the notice inviting tenders. Learned counsel for the State submits that the details would be provided in the bid documents and orally stated that the same would be to fill the pot holes. But what about the work at serial Nos.6 and 7? At serial No.6 bids are invited for erection of platform for meeting at Sundhamata. Similarly, at serial No.7 bids are invited for erection of platform for meeting at Ramsin/Bhinmal. Description of the works to be (11 of 12) executed for the works at serial No.6 and 7 are missing from the notice inviting tenders.
29. Reading the notice concerning works for which bids have been invited, sans description of the works, it is apparent that during the road-shows public platforms are being erected at Government cost. Thus, the inevitable conclusion on facts has to be that under the cover up of the notice inviting tenders where detailed description of the works to be executed have not been listed, money is being spent for erecting public platforms wherefrom the Chief Minister would address political rally.
30. Similarly, the tender documents annexed with Application No.10/2018 show large number of works for providing water proofing tentage and german hanger.
31. At this stage we would deal with the left over issue as indicated by us in para 27 above.
32. It is conceded by the State that Government functions for inaugurating Government projects or inaugurating exhibitions where publicity would be given to the social welfare schemes of the State are being held during the Gaurav Yatra. Meaning thereby, after the Chief Minister alonwith office bears of Bhartiya Janta Party travels a part of road journey during the yatra, the yatra is temporarily halted and a function is held, purporting to be a State sponsored function. Thereafter, yatra proceeds and another State sponsored function is held.
33. So intermingled are the State sponsored and State financed programmes with the Gaurav Yatra that it would be impossible to (12 of 12) segregate one from the other. It is trite that the impact of an act has to be understood from the view point of understanding by the mythical common man. To a common man, if during the Gaurav Yatra, which is a political event, the leader of a political party who happens to be the Chief Minister inaugurates public functions, the understanding would be the glorification of the political party and not the glorification of the achievements by the Government.
34. Keeping in view the principles laid down in the two decisions of the Supreme Court in the writ petitions filed by the Common Cause, we declare that henceforth no public functions sponsored and financed by the State would be held during the road-shows i.e. Gaurav Yatra to be undertaken by the Bhartiya Janta Party in the State of Rajasthan. Meaning thereby, on the day of the Gaurav Yatra no Government functions would be held enroute when the Chief Minister and the functionaries of the Bhartiya Janta Party halts the Gaurav Yatra for some time and re-commences the same after the break.
35. The petitions are disposed of accordingly. (G R MOOLCHANDANI)J. (PRADEEP NANDRAJOG)C.J. Parmar Powered by TCPDF (www.tcpdf.org)