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We may record that the applicant of Civil Application No. 9412 of 2011 had filed Writ Petition [PIL] No. 97 of 2011 in the nature of public interest litigation praying for a direction to the State of Gujarat to appoint Lokayukta within a stipulated time in accordance with the Gujarat Lokayukta Act, 1986. Such petition was filed, when the Governor had not yet issued the notification appointing Shri R.A Mehta as Lokayukta. When such petition was pending, the Governor of Gujarat issued Notification dated 25th August 2011 appointing Shri R.A Mehta as Lokayukta. Such appointment came to be challenged by the State Government and some other independent organizations. The State's petition was numbered as Special Civil Application No. 12632 of 2011. After initially placing the same before the learned Single Judge, the same came to be placed before us on 29th August 2011. We adjourned the matter to 5th September 2011 to enable the State to amend the same. On 5th September 2011, no further order was passed. However, on 7th September 2011, we passed the following order:-

Having thus heard learned advocates and having perused the documents on record, at the outset, we may recall that in so far as Writ Petition [PIL] No. 97 of 2011, which is in the nature of public interest litigation urging this Court to direct the State to make early appointment of Lokayukta is concerned, in the letter written by the Chief Minister to the Prime Minister, there is no reference or connection at all. The Public Interest Litigation is filed to ensure early appointment of Lokayukta, which was vacant for unduly long period of time. Such petition was filed when the Governor of Gujarat had yet not issued notification appointing Shri Justice R.A Mehta as Lokayukta. Entire letter of the Chief Minister has reference to such appointment and the manner in which the Governor exercised powers in doing so. It may be that there are number of references to the previous attempts made to fill-up the post and the reasons, according to the author of the letter why the same could not be completed. However, such references have nothing to do with the pending writ petition no. 97 of 2011 (PIL). To that extent, we see no link between the letter in question with the pending proceedings before the High Court. Essentially, Civil Application No. 9412 of 2011 is filed in Writ Petition No. 97 of 2011 [PIL]. However, since in the application, there are references to the writ petition filed by the State Government viz., Special Civil Application No. 12632 of 2011 and its pendency when the letter was written, we have not confined our inquiry only with respect to the pending Writ Petition No. 97 of 2011 (PIL). There is also independent Misc. Civil Application No. 12587 of 2011 which also urges us to take suo motu cognizance of the letter and initiate contempt proceedings, if found to be contemptuous.

Additionally, we have also perused the contents of the letter in question. It is a letter by the Chief Minister of a State to the Prime Minister of the country raising concerns and grievances about the appointment of a Lokayukta in the State by the Governor without aid and advice by the Council of Ministers. On one hand, it questioned the legality thereof, in view of the provisions contained in Article 163 of the Constitution providing that there shall be a Council of Ministers to aid and advice the Governor in exercise of his functions; except in so far as he is by or under the Constitution required to exercise such functions or any of them in his discretion. It is the stand of the Chief Minister in the said letter that appointment of Lokayukta under Section 3 of the Gujarat Lokayukta Act could not have been made without the aid and advice of the Council of Ministers. On the other hand, it also questioned the manner in which such appointment came to be made., primarily conveying that the Governor had been influenced by the stand of the Leader of Opposition. In the concluding paragraph, the Chief Minister requested the Prime Minister to take necessary action for the annulment of the order of appointment of Lokayukta and also to recall Smt. Kamla Beniwal as Governor of the State.

In so far as the contents of the letter are concerned, we do not find the same would fall within the description so as to prejudice, or interfere with, or tends to interfere with the due course of judicial proceedings, or would interfere with, or obstructs or tends to obstruct, the administration of justice. In fact, most of the contents of the said letter form part of the State's averments in the petition itself, challenging the Governor's order appointing Lokayukta. In the said petition, it is strongly urged that the Government had no power to appoint a Lokayukta without aid and advice of the Council of Ministers. The sequence, starting from 7th August 2006, when the Chief Minister held a meeting with the Leader of Opposition to consult him on the question of appointment of Lokayukta have also been stated in the petition. Various stages through which consultation process passed through are also highlighted. Different exchanges between the three dignitaries viz., the Chief Justice, the Chief Minister and the Governor before the issuance of the appointment by the Governor have also been set out in detail. The nature of consultation and the stand of the Leader of Opposition in this regard were also subject matter of the said petition. It can, therefore, not be said that in the letter dated 1st September 2011 any such angle was brought into picture, by virtue of which the said letter can be stated to be one, which would obstruct, or tend to obstruct the course of proceedings before the High Court.