Gujarat High Court
Mahebubkhan Mahmadkhan Sindhi vs State Of Gujarat & 7....Opponent(S) on 31 July, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/WPPIL/236/2013 CAV JUDGEMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 236 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? ================================================================ MAHEBUBKHAN MAHMADKHAN SINDHI....Applicant(s) Versus STATE OF GUJARAT & 7....Opponent(s) ================================================================ Appearance:
MR TEJAS M BAROT, ADVOCATE for the Applicant(s) No. 1 MS VACHA DESAI, AGP for the Opponent(s) No. 1 - 2 MR NAVIN PAHWA for M/S THAKKAR ASSOC., ADVOCATE for the Opponent(s) No. 3 MR D A CHAUDHARI, ADVOCATE for the Opponent(s) No. 8 MS TRUSHA K PATEL, ADVOCATE for the Opponent(s) No. 8 NOTICE SERVED BY DS for the Opponent(s) No. 1 - 2 , 5 - 6 Page 1 of 21 C/WPPIL/236/2013 CAV JUDGEMENT ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 31/07/2014 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By this writ-application in the nature of a public interest litigation, the petitioner, a retired police officer, has prayed for the following reliefs :
"(A) The Hon'ble Court be pleased to issue an appropriate writ, order or direction, directing the concerned respondent authorities to immediately remove the respondent no.3 from the post of Deputy Superintendent of Police, office of Deputy Director, Anti-
Corruption Bureau, Mehsana;
(B) Hon'ble Court be pleased to order inquiry in the large scale illegal purchases of lands made by the respondent no.3 at villages Dangiya and Madana in Taluka :
Dantiwada, District Banaskantha and be further pleased to order the said lands to vest in Government; (C) Hon'ble Court be pleased to direct inquiry in the matter of filing of false Reports under Section 169 of Cr.P.C. in the cases being I.CR. Nos.79/2004, 151/2004 and 67/2005, which were registered with Sardar Nagar Page 2 of 21 C/WPPIL/236/2013 CAV JUDGEMENT Police Station against the respondent no.3 and others and order inquiry against the officers responsible in preparing such reports and further be pleased to order such reports be challenged before the appropriate court; (D) Hon'ble Court be pleased to order demolition of shopping complex purportedly put up by Shri Achaleshwar Mahadev Trust in gauchar land of village Dangiya, Taluka Dantiwada, District Banaskantha; (E) Hon'ble Court be pleased to direct concerned respondent authorities to launch prosecution against the respondent no.3 in the matter of acquisition of illegal wealth and assets disproportionate to the known sources of income;
(F) Pending admission hearing and final disposal of present petition, the Hon'ble Court be pleased to issue appropriate directions forthwith restraining the respondent no.3 from discharging duties as Deputy Superintendent of Police, Assistant Director, Anti-
Corruption Bureau, Mehsana;
(G) Any other and further relief/s as may be deemed just, fit and proper in the facts and circumstances may kindly be granted in the interest of justice."
The case made out by the petitioner in this petition may be summarised as under :
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C/WPPIL/236/2013 CAV JUDGEMENT According to the petitioner, the respondent no.3 who is presently working as the Deputy Superintendent of Police, Assistant Director, Anti-Corruption Bureau, Mehsana, has made illegal purchase of vast parcels of land by abusing his position and power.
It is alleged that the respondent no.3 has encroached upon 'gauchar' land and 'gamtal' land and has made illegal construction thereon. The respondent no.3 has purchased lands from the project affected persons and has left no stone unturned in abusing his position as a Government servant being a Deputy Director of the Anti-Corruption Bureau.
According to the petitioner, in the year 1979, the respondent no.3 was serving as a Bus-Conductor with the Gujarat State Road Transport Corporation and was dismissed from service as he was found involved in serious financial irregularities. However, by suppressing such facts, the respondent no.3 secured appointment in the police department. The respondent no.3 joined the police department in the year 1981 as a Police Sub-Inspector at the Kakoshi Police Station.
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C/WPPIL/236/2013 CAV JUDGEMENT According to the petitioner, the respondent no.3 was posted in the year 2003 as the Police Inspector (Immigration) at the Ahmedabad International Airport. While serving as such, the respondent no.3 got himself involved in three offences, wherein he was arraigned as an accused.
I-CR Nos.79 of 2004 and 151 of 2004 were registered with the Sardarnagar Police Station, Ahmedabad against the respondent no.3 for the offence punishable under Sections 419, 465, 468, 471(1) read with Section 114 of the Indian Penal Code including Section 12 of the Passport Act, and Sections 7, 12 and 13(1)(d) of the Prevention of Corruption Act. Whereas, I-CR No.67 of 2005 was registered for the offence punishable under Sections 406, 409, 419, 420, 465, 467, 471, 201 and 120B of the Indian Penal Code including Section 12 of the Passport Act and Sections 7, 12, 13(1)(d) of the Prevention of Corruption Act.
According to the petitioner, the respondent no.3 being an influential police officer, managed to see that in all the three cases reports under Section 169 of the Code of Criminal Procedure were filed.
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C/WPPIL/236/2013 CAV JUDGEMENT According to the petitioner, in one of the orders passed by the Special Judge, Anti-Corruption Bureau & Additional Principal Judge, City Civil & Sessions Court, Ahmedabad, strictures have been passed against the respondent no.3, and the manner in which the investigation was carried out in all the above referred three cases, wherein reports under Section 169 of the Code of Criminal Procedure were filed.
It is alleged that during the posting of the respondent no.3 as the Police Inspector (Immigration), at the Ahmedabad International Airport, by corrupt practice the respondent no.3 amassed huge wealth by way of illegal gratification and purchased lands in the name of his father, his wife, his son, his brother-in-law and other relatives including through the power of attorney holders. The said lands have been purchased at the villages Madana and Dangiya of Taluka Dantiwada, District Banaskantha, respectively. Uptill the year 2003, the father of the respondent no.3 owned only 12 vighas of land bearing Survey Nos.6, 7/p/1 and 15/1. As on today, the respondent no.3 owns almost 500 vighas of land which includes land bought over from the Sipu Dam Project affected persons who were allotted land by the Government.
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C/WPPIL/236/2013 CAV JUDGEMENT According to the petitioner, the income derived through the corrupt practice is being shown as an agricultural income in the income-tax returns. In the year 2008, the respondent no.3 disclosed the income to the tune of Rs.60,27,502=00, out of which the agricultural income was shown to the tune of Rs.54,44,481=00. The official salary drawn by the respondent no.3 for the year 2008 was Rs.2,94,550=00. The income for the year 2009 was Rs.1,21,67,475=00, out of which the salary accounted only for Rs.4,05,514=00. The income for the year 2010 was Rs.1,32,77,219=00 with salary to the tune of Rs.4,83,719=00. The agricultural income for the year 2010- 2011 was shown to the tune of Rs.1,46,61,807=00.
According to the petitioner, the respondent no.3 has encroached upon the 'gamtal' land, whereon he has made illegal construction of 42 shops. The same were developed and sold in the name of a charitable trust, viz. Shri Achaleshwar Mahadev Trust, of which the respondent no.3 is the Managing Trustee.
In such circumstances referred to above, the petitioner prays that the respondent no.3 deserves to be dismissed from service of the State Government and necessary inquiry be Page 7 of 21 C/WPPIL/236/2013 CAV JUDGEMENT ordered with regard to the assets disproportionate to the known source of his income.
I. Stance of the Respondent No.3 :
The petition in the form of a public interest litigation deserves to be rejected only on the ground that the same has been filed to ventilate personal vengeance. The respondent no.3 is presently working as the Deputy Superintendent of Police (Anti-Corruption Bureau), Mehsana unit. During the period between 13th April 2010 and 30 th November 2011, the respondent no.3 was posted at Mehsana as the Police Inspector, Anti-Corruption Bureau (Field). The brother of the petitioner, viz. Musamiya M.Sindhi, was also a police officer, and while on duty as the Police Sub-Inspector at the Visnagar Police Station, in March 2011 he was caught red-handed accepting bribe from the nephew of an accused person against whom he had filed a false complaint. The brother of the petitioner had registered an FIR bearing CR No.II-24 of 2011 at the Visnagar Police Station on 7th February 2011 against one Shri Mukeshbhai Patel under Section 170 of the Indian Penal Code on the accusation that he had displayed a sticker of an advocate on his car. A trap was laid under the Prevention of Page 8 of 21 C/WPPIL/236/2013 CAV JUDGEMENT Corruption Act by the respondent no.3 in his capacity as the Police Inspector, Anti-Corruption Bureau (Field), Mehsana, bearing CR No.I-4 of 2011 dated 30 th March 2011, which ultimately led to the arrest of the petitioner's brother, filing of charge-sheet and committal of the case to the Sessions Court.
According to the respondent no.3, the petitioner and his brother, Musamiya Sindhi, had made several attempts and requests to the respondent no.3 to help them in weakening the evidence so that Musamiya Sindhi could be exonerated from the case.
According to the respondent no.3, since he did not accede to the unreasonable and illegitimate demand made by the petitioner and his brother Musamiya Sindhi, they started filing applications under the RTI against him.
After obtaining some information through the RTI, the petitioner and his family members made several applications to the various Government agencies so as to falsely implicate the respondent no.3, but having failed, have filed the present petition labelled as 'Public Interest Litigation'. Page 9 of 21
C/WPPIL/236/2013 CAV JUDGEMENT The respondent no.3 has denied having made any illegal purchases of vast parcels of land or having indulged in corrupt practice. The respondent no.3 has also denied having encroached upon any 'gauchar' or 'gamtal' land including purchase of lands from the project affected persons.
According to the respondent no.3, he was not removed from the services of the Gujarat State Road Transport Corporation but, after appearing in the examination conducted by the State Government for direct recruitment to the posts of Police Sub-Inspector, he was selected and, therefore, he resigned from the post of Bus-Conductor of the Gujarat State Road Transport Corporation on 9th October 1981.
The allegations levelled by the petitioner regarding the three FIRs referred to above are also far from the truth. All the three FIRs were investigated by the CID Crime, Ahmedabad, and on 7th August 2006, reports under Section 169 of the Code of Criminal Procedure were filed in the Court of the learned Additional Principal and Sessions Judge, Ahmedabad. Those reports were accepted by the learned Judge vide two separate orders dated 24th January 2007. As regards the third case, the same was also investigated by the CID Crime, Ahmedabad, and Page 10 of 21 C/WPPIL/236/2013 CAV JUDGEMENT a report under Section 169 of the Code of Criminal Procedure was filed in the Court of the learned Additional Principal and Sessions Judge, Ahmedabad, on 6th August 2007 and the same was accepted by the Court on 5th September 2007.
The respondent no.3 has not made any illegal purchases of lands in the name of his father or any of his family members. It is denied that the father of the respondent no.3 possessed only 12 vighas of land in the year 2003. It is also denied that the respondent no.3 possesses agricultural land admeasuring around 500 vighas. According to the respondent no.3, he generates income from agricultural activities. The respondent no.3 has been carrying on agricultural operations using the latest irrigation techniques and equipments. He has been successful in the production of sugarless potatoes and holds the record of highest production of sugarless potatoes for the year 2010. According to the respondent no.3, all the details regarding his income are being regularly furnished before the authorities concerned as required under the Gujarat Civil Services (Conduct) Rules, 1971.
The allegation of encroaching upon the 'gamtal' land and making illegal construction of 42 shops on the same have also been denied. The charitable trust referred to by the petitioner Page 11 of 21 C/WPPIL/236/2013 CAV JUDGEMENT was registered in the year 1953 and the said trust made construction of 32 shops after obtaining permission from the competent authority. There is not a single shop in the name of the respondent no.3. None of the shops have been sold by the trust, but they are all given on rent.
In such circumstances referred to above, the respondent no.3 has prayed that there being no merit in this public interest litigation, the same may be rejected with costs.
II. Stance of the Respondent No.4 - Assistant Director, Anti-Corruption Bureau :
The respondent no.3 was not removed from the service of the Gujarat State Road Transport Corporation on charges of any serious financial irregularities, but had resigned from service as he was appointed as the Police Inspector by way of direct recruitment.
The allegations levelled by the petitioner that the respondent no.3 was promoted as the Police Inspector pending departmental inquiries is also not true. It is only after considering the service record of the respondent no.3 that he was promoted as the Police Inspector.
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C/WPPIL/236/2013 CAV JUDGEMENT In all the three cases referred to by the petitioner, reports under Section 169 of the Code of Criminal Procedure were filed in the competent court and the same were accepted, against which no appeal has been filed by the State Government.
As regards the allegations levelled by the petitioner of assets disproportionate to the known sources of income, the same was inquired into, and at the end of the inquiry, nothing objectionable was found by the department against the respondent no.3. It is only after obtaining the necessary permission from the concerned department that the properties were purchased by the respondent no.3 and all the payments were made through cheques.
As the brother of the petitioner was involved in a case which was being investigated by the respondent no.3 and as the respondent no.3 did not accede to the illegitimate demands of the petitioner and his brother, the present petition has been filed only with a view to wreck personal vengeance.
We have heard Mr.Tejas Barot appearing on behalf of the petitioner, Mr.Navin Pahwa, the learned advocate appearing on behalf of the respondent no.3 and Ms.Vacha Desai, the learned Page 13 of 21 C/WPPIL/236/2013 CAV JUDGEMENT AGP appearing on behalf of the respondent nos.1 and 2.
Having heard the learned counsel for the parties and having gone through the materials on record, the only question that falls for our consideration in this public interest litigation is, whether the petitioner is entitled to any of the reliefs as prayed for.
Ordinarily, court would allow litigation in public interest if it is found :
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;
(ii)That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
(iii)That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of Page 14 of 21 C/WPPIL/236/2013 CAV JUDGEMENT the Constitutional law;
(iv)That such person or group of persons is not a busy body or a meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
(v)That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
(vi)That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
(vii)That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii)Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction Page 15 of 21 C/WPPIL/236/2013 CAV JUDGEMENT that the information laid before the Court was of such a nature which required examination;
(ix)That the person approaching the Court has come with clean hands, clean heart and clean objectives;
That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.
Here is a case where a retired police officer has levelled serious allegations of corrupt practice against other police officer who is in service. The entire petition is based on the allegations levelled against the respondent no.3 who is serving as the Deputy Superintendent of Police, Assistant Director, Anti-Corruption Bureau, Mehsana. When a particular person who is the object and target of a petition styled as a public interest litigation, the court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grudge or some other malafide object. It is well-settled that a public interest litigation Page 16 of 21 C/WPPIL/236/2013 CAV JUDGEMENT is a weapon which has to be used with great care and circumspection, and the court has to be extremely careful to see that behind the veil of public interest a private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens.
The Supreme Court in the case of S.Pandey v. State of West Bengal, (1987)2 SCC 295, observed that a frivolous litigation in the name of a public interest litigation by public having vested interest should not be entertained. In para 61 at page 1136, it was observed :
"It is only when courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provision for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restrain of public interest litigants." Page 17 of 21
C/WPPIL/236/2013 CAV JUDGEMENT In Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P., AIR 1990 SC 2060, the Supreme Court in para 8 observed as under :
"Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Article 32 of the Constitution. But this can only be done by any person interested genuinely in the protection of the society on behalf of the society or community. This weapon as a safeguard must be utilised and invoked by the Court with great deal of circumspection and caution. Where it appears that this is only a cloak to "feed fact ancient grudge" and enmity, this should not only be refused but strongly discouraged. While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior court preventing other genuine violation of fundamental rights being considered by this Court. This would be an act or a conduct which will defeat the very purpose of preservation of fundamental rights."
In the present case, there are allegations and counter- allegations. With a view to highlight the dubious character of the respondent no.3, it has been submitted before us that the respondent no.3 was a Bus-Conductor serving with the Gujarat Page 18 of 21 C/WPPIL/236/2013 CAV JUDGEMENT State Road Transport Corporation and was removed from the service as he was involved in serious financial irregularities. This fact has been categorically denied not only by the respondent no.3 himself but even by the department and it has been clarified that the respondent no.3 had resigned from service as he was appointed as the Police Sub-Inspector on 19 th November 1981.
Mr.Barot, the learned advocate appearing on behalf of the petitioner has strenuously contended before us that the respondent no.3 should not be permitted to serve as Deputy Superintendent of Police, Assistant Director (Anti-Corruption Bureau) since three cases were registered against him for serious offences like cheating, forgery, criminal conspiracy, corruption, etc. According to Mr.Barot, although in all the three cases which were investigated by the CID Crime, Ahmedabad, reports under Section 169 of the Code of Criminal Procedure were filed, yet in one of the orders passed by the learned Special Judge, Anti-Corruption Bureau and Additional Principal Judge, City Civil and Sessions Court, Ahmedabad, strictures have been made regarding the manner in which the reports under Section 169 of the Code of Criminal Procedure were filed.
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C/WPPIL/236/2013 CAV JUDGEMENT Mr.Barot submitted that we should look into those cases which were registered against the respondent no.3. But, we are afraid, we should not go into the legality and validity of those orders passed by the competent court accepting the reports filed under Section 169 of the Code of Criminal Procedure in a public interest litigation and having attained finality.
Mr.Barot has very strenuously submitted regarding the assets of the respondent no.3 disproportionate to the known sources of his income. A lot has been argued regarding the immovable properties owned by the respondent no.3. In this regard, the stance of the department is that all the properties have been bought after seeking necessary permission from the competent authority. So far as the allegation of assets disproportionate to the known sources of income are concerned, the same are to be looked into by the department, and in a public interest litigation directed against an individual, this Court should not straightway order any inquiry in that regard.
In short, considering the nature of the allegations levelled against the respondent no.3, we find that there are allegations Page 20 of 21 C/WPPIL/236/2013 CAV JUDGEMENT even against the petitioner and his brother and, therefore, in such circumstances, we are inclined to take the view that it cannot be said that the petitioner has no motive to file this petition, for it could be just to embarrass the respondent no.3.
It is true that the respondent no.3 is a public servant and just because a petition has been filed levelling serious allegations of corrupt practice, does not necessarily become a public interest litigation, particularly when there is a background of some differences between the petitioner and the respondent no.3.
For the foregoing reasons, we are of the view that this petition should fail. The petition is accordingly rejected. No order as to costs.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 21 of 21