Patna High Court
Council For Protection Of Public Rights ... vs The State Of Bihar And Ors. on 8 October, 1991
Equivalent citations: 1992(1)BLJR138
ORDER
1. This is a Public Interest Litigation. The scope of Public Interest Litigations have been laid down by various decisions of the Supreme Court and this Court, from time to time. There is plethora of Public Interest Litigations in this High Court. We are sorry to note that on various occasions we have come across various writ applications filed in the name of "Public Interest Litigations." which are pure and simple "Private Interest" litigations and some of them are frivolous litigations. However at the same time we should point out that there are many writ applications filed in this Court which are truly and genuine in the nature of Public Interest Litigations and this is one of them.
2. The allegations made in this Public Interest Litigation are to the following effect. This is based on a publication in a newspaper called 'Navbharat Times' wherein it was stated that about 200 Ministers of Bihar took loan/advance for the purchase of motor vehicles but even after they ceased to be ministers, they not repaid the loans/advances till date nor there is any chance of its repayment, According to the petitioner, it involves about rupees one crore. It is further alleged that the said loan is not being realised for reasons best known to the respondents. The respondents in this writ petition are the State of Bihar. Finance Commissioner and the Accountant-General. In this context reference has been made to Minister's Motor Gar Advance Rules, 1953, (hereinafter referred to as 'the said Rules') and the pro forma agreements/documents being enclosures thereto which are made annexures to this petition. It may be pointed out that the learned Advocate General appearing on behalf of the State and the learned advocates appearing for all other parties have not disputed the correctness of the said Rules/documents and their applicability in the facts and circumstances of this case. After filing of the said writ petition certain orders were passed by this Court, from time to time In this connection we refer to orders dated 26th August', 1991, and 19th September, 1991, which would speak for themselves. From the said rules and documents, the following position transpires which is also not disputed by the Advocate-General appearing for the State or any other learned advocate:
(1) These Rules apply in respect of Ministers who do not keep motor cars purchased by the State Government. [Rule 1 (iii)].
(2) The maximum amount which can be advanced is Rs. 50,000 (which has been changed to Rs, 70,000 or the anticipated price of the car whichever is less. (Rule 3). However, It is not brought to our notice when the amount has been changed by way of increase.
(3) The advance sanctioned, shall be granted free of interest. (Rule 4).
(4) The amount advanced, shall be recovered by deducution from the salary bill of the Minister concerned in not more than 48 consecutive monthly instalments, commencing with the first issue of salary after the advance is drawn. (Rule 4 and Appendix A and B).
(5) The negotiations for the purchase and final payment for the car, shall be made within one month from the date on which the Minister concerned draws the advance; failing such completion and payment, the full amount shall be refunded to the Government. (Rule 5).
(6) The Minister concerned, in whose favour such advance has been sanctioned, has to execute an agreement in the form given in Appendix A to the Rule at the time of drawing the amount of the advance, (Rule 6).
(7) The Minister concerned in whose favour such advance has been sanctioned shall be required to execute a mortgage bond in the form given in Appendix B to the Rules on completion of the purchase, hypothecating the car to the Government as security for the advance. Cost price of the car purchased shall be entered in the schedule of specifications attached to the mortgage bond. (Rule 6 and Appendix A).
(8) The motor car purchased with the aid of the said advance, shall be insured and shall be kept insured in the manner laid down (Rule 7).
(9) The provious sanction of the Government would be necessary if the Minister concerned wants to be sell any such car purchased with the aid of an advance which has not been fully repaid. [Rule 8 (1)] (10) If a car is sold before the advance is fully repaid in order that another car may be purchased, permission may be given by the Government to apply the sale proceeds towards such purchase upon certain conditions. [Rule 8 (2)].
(11) If the motor car has been purchased and hypothecated as above or when the borrower ceases to be a Minister or dies, the whole amount shall immediately become due and payable. (Appendix A).
(12) The car so purchased shall stand assigned and transferred to the Government by way of security for the said advance. (Appendix A).
(13) The Minister concerned shall not sell or pledge or part with the property or possession of the car so long any money remains payable to the Government in respect of the same. (Appendix B).
(14) If any instalment is not paid or recorvered or if the borrower dies or ceases to be a Minister or if he sells or pledges or part with the property of possession of the said motor car, the whole of the said sum which then remains outstanding, shall forthwith become payable (Appendix B).
(15) On the happening of any event, whereupon the amount becomes immediately due and payable, the Government shall have the right to take possession of the said car and may sell the car with or without/removing the same. (Appendix B).
(16) The power of taking possession or selling of the car shall not prejudice the right of the Government to sue the borrower or his personal representatives for the balance amount remaining due. (Appendix B).
(17) Evidence has to be produced to show that the Motor Insurance Company with whom the motor car is insured have received notice that Government is interest In the policy. (Appendix B).
3. Counter-affidavits have been affirmed on behalf of the respondents (including the cue affirmed on 27-9-1991 by respondent No. 2, who is the Finance Commissioner of the State Government. The Principal Accountant-General, Bihar has also affirmed a similar affidavit. The relevant paragraphs are quoted hereinbelow:
(5) That after the direction of the Hon'ble Court the list was checked up again jointly by the Officers of the Finance Department and Accountant-General, Bihar. A list has been prepared showing outstanding amount against the Ministers and Ex-Ministers and also a separate list has been prepared where the amount has become overdue. It may be submitted that word overdue means that where the loanee is entitled to repay the loan in 48 instalments from the next month of the loan granted and since 48 months have expired.
(6) That the persons who are Ex-Ministers and are at present M.L.A./M.L.C. and against whom loan amount is still dne vide Annexure F/2, the Speaker and Chairman of the Assembly/Council have been requested to get the amount due realised from the salary of such persons.
(7) That the other category of list as contained in Annexure G/2 contains the name of Ex-Ministers and who are drawing pension and have consented for "recovery of loan amount for their pension amount." While authorising them to draw pension, the authority slip issued by the Accountant-General, contains the entry for recovery of the loan amount from pension as consented by the concerned person.
(8) That the list contained in Annexure H/2 contains the names of 104 persons from whom the consent letter as yet is not available.
(9) That the charts containing as Annexures D/2 to H/2 have been prepared on the basis of the records available In the offices of the Accountant-General Bihar, and Finance Commissioner and an explanatory note has also been prepared at the top of the list.
4. The Finance Commissioner has also submitted an "Explanatory Note" which is annexed to his counter-affidavit wherein it is stated as follows:
Explanatory Note of Annexures D/2 to H/2 on outstanding Motor Car Advances to Ex-Ministers and Ministers as on 1st August, 1991.
Annexure D/2.--It shows the names, sanctioned amount of advance, outstanding amount and year of sanction. All the outstanding amounts have become overdue as the advance is to be paid within 48 months from the next month after the month in which advance is taken.
Its substance is:
Loanees Amount Amount outstanding
Sanctioned as on 1-8-1991.
Rs. Rs.
The above Annexure D/2 has been further analysed as follows:
Annexure F/2: It shows the names of Loanees who are MLA/MLC as on 1-8-1991.
Its substance is:
No. Amount Amount outstanding
Sanctioned as on 1-8-1991.
Rs. Rs.
13. 6,14,000 1,63,904,15
Annexure G/2: It shows the details of loanees who have consented for recovery from their pension as Ex-MLA/MLC draw pensions from various Treasuries in Bihar. Its substance is:
Loanees Amount Amount outstanding.
Sanctioned
Rs. Rs.
87. 13,98,000 4,56,726,90
It does not include the names of Shri Braj Kishore Singh, MLC, Shri Rajendra Singh and Shri Vijay Kumar Mitra, MLAs, who gave their consent for recovering the balance from their pensions. Their names are now included in Annexure F/2.
Annuxre H/2: It shows the details of remaining loanees i.e., those not covered by Annexure F/2 and Annexure G/2. Its gist is:
Loanees Amount Amount outstanding
sanctioned
Rs. Rs.
104 25,32,740.00 11,81,830.75
Annexure E/2 : shows names of loanees who have still time to repay the advance as per sanction i.e. within 48 months from the next month after the month of drawal. Advance drawn from September 1987 onward are included in this list. Its gist:
Loanees Amount Amount outstanding
sanctioned
Rs. Rs.
10 5,85,000-00 2,21,500-00
These names are not included in Annexure D/2.
END-- Total loanees 164
Overdue 154
Not overdue 10
In this context we should point out that paragraph 6 of the affidavit deals with Annexure F/2 and paragraph 7 of the affidavit deals with Annexure G/2. We may also point out that though it Is sought to be contended in Annexure E/2 of the Explanatory Note that these 10 persons have still time to pay as 48 months have not expired, this stand is totally wrong in as much as, under the Rules quoted above, when they ceased to be Ministers, the whole amount became immediately due. The learned Advocate-General appearing for the State has very fairly admitted such position. Accordingly, in respect of all the ten Ministers, whose names are specified sin Annexure E/2 as soon as they ceased to be Minister, the total amount then outstanding became immediately due and payable, though 48 months had not yet expired. Accordingly, the total "loanees" are 164 in number and not 154.
5. From the Rules and the connected documents themselves it is clear, which is also not disputed by any one appearing, that as soon as the Ministers concerned, to whom such advance has been made, cease to be Ministers, the amount outstanding becomes immediately due, though otherwise it was to be paid by 48 monthly instalments if they continued to be Ministers, It is also clear from the same that immediately after the amount becomes due, the State Government could sell the cars in satisfaction of its claim. This is without prejudice to the right of the State Government to recover the amount in any other manner whatsoever.
6. A complaint has been made on behalf of the petitioner that in many cases, the cars were not purchased at all. in this context, our attention is drawn to Rule 3. However, nothing is disclosed in the counter-affidavits regarding the details of the cars purchased by the loanees and whether they kept any motor car purchased by the State Government which would disentitle them to obtain any loan/advances under the said Rules.
7. We regret to note that no explanation has been given also as to why, even when these Ministers ceased to be Ministers, and accordingly the balance amount became immediately due, what steps had been taken by the Government, if any, to recover the amount, including exercising its power to sell the cars.
8. We may also point out that there are several cases where the year of "drawal" were in 1960s. We have gone through the said list which shows that about 27 Ex-Ministers came within such category. We apprehend that in many of the cases the persons concerned or the cars in question may no longer be in existence.
9. Though the affidavits have not made full disclosure and though various details regarding the Ex-Ministers and their cars have not been specified therein at least some progress has been made by disclosing some materials. We may also record that the stand of the present Government is, as stated by the learned Advocate-General, that all steps will be taken for realisation of the amounts due from all of them. Accordingly, we shall give an opportunity to the Government to show its bona fide regarding recovery and for this purpose, we shall adjourn this matter for two months and fix it for hearing on 10th of December, 1991, next. Meanwhile we give the following directions. The respondents are directed to affirm affidavits giving the full particulars regarding such loans/advances, particularly the following:
(1) In respect of all the 164 persons, it is to be disclosed--
(a) as to whether they kept any motor car purchased by the State Government at the time the advance was made and whether any enquiry was made to that effect prior to such advance being made;
(b) when did they purchase the cars, if at all, out of the loans advanced and the particulars of such cars purchased and the amount advanced;
(c) whether the agreements/documents being Annexures 'A" and 'B' of the Rules were signed/executed by the loanees as required under the Rules;
(d) whether insurances of the cars were made and insurance companies were notified as required.
(e) as to when the persons concerned ceased to be Ministers;
(f) steps taken, if any, under the Rules for recovery of the balance amount due, including selling the cars;
(g) the details of the payments made by them and the time of such payment before and after 1-8-1991.
(h) how many of these 164 Ex-Ministers are still alive?
(i) how many of the cars were purchased by way of such advance and how many of them are still being used by them?
(2) In respect of Annexure F/2 in the Note, the Government shall indicate the steps taken and the amount recovered, if any. It may be pointed out that the amount due in this case was Rs. 1,63,904.15 on 1-8-1991. They are to indicate as to whether the State Government has been informed by the Speaker and the Chairman as to the action taken in this regard. We make it clear that at this stage we are not going, into the question as to whether in respect of these Ex-Ministers, who are at present MLA/MLCs. the State Government is entitled to take a different stand, which is not empowered by the Rules, so far as the recovery of money in these cases is concerned, instead of taking appropriate action under the Rules.
(3) So far as Annexure G/2 is concerned, the State Government and the Accountant General are directed to disclose what amount are being deducted from the pension and what amount has been deducted so far, so that the Court may ascertain as to how long it would take to recover the sum of Rs. 4,56,726.90 due under this heading.
(4) It appears from Annexure H/2 that in respect of 104 loanees the amount outstanding is Rs. 11,81,830.75. The Government shall also indicate what steps it has taken for the purpose of realisation of the amount in respect of each one of them.
(5) So far as Annexure E/2 is concerned, as we have indicated, it is not correct that the amount is not overdue merely because ordinarily it is payable by 48 monthly instalments because the whole amount becomes payable as soon as they ceased to be Ministers. Particulars to be furnished as to the amounts recovered from them since the advance was made.
10. Let copies of this order be given to the learned Advocate-General and the learned advocates appearing for the Accountant-General and the Petitioner. Let a copy of this order be also sent to the Chief Secretary of the State Government so that he may take necessary action in the matter and also bring the same to the attention of the Chief Minister himself.