Case Briefs

Supreme Court: The Division Bench of L. Nageswara Rao and S. Ravindra Bhat*, JJ., dismisses the appeal initiated by the accused contractors in Integrated Housing and Slum Development corruption case. The Bench observed,

“The constructions, according to the reports, were sub-standard – in respect of 100 such houses, so severe that the units were unusable. The main objective of providing housing to 1206 eligible and deserving families remains unfulfilled despite expenditure of substantial amounts.”

Factual Fulcrum

The criminal Public Interest Litigations were filed by the respondents seeking directions to the Union of India, the State of Maharashtra, the Maharashtra Housing and Urban Development Authority (MHADA) and state officials to initiate criminal proceedings against the responsible officers and office bearers of Municipal Council, Naldurg and the contractors concerned for misappropriation of government funds in implementation of the housing scheme in the municipality.

An Integrated Housing and Slum Development Programme (IHSDP) was initiated by the Union Government through the State Government, under the “Jawaharlal Nehru National Urban Renewal Mission” for providing basic services to the urban poor including affordable prices, improved housing, water supply, sanitation, wherein the Maharashtra Government had appointed MHADA as the nodal agency.

The petitioners-respondents alleged that the quality of work carried out by the appellants was very poor and the officials (i.e. MHADA, municipality, etc.) did not inspect or supervise the work, and did not submit the quarterly reports as required under the scheme. It was submitted that the municipality diverted funds meant for the said development project, for other works as the observation made by technical team showed that the municipal council made an excess payment of Rs. 2,43,79,017/- to the contractors as compared to the work done. The allegations were also made with regard to failure to complete the project, and various other omissions were highlighted.

Findings of the High Court

Observing the dereliction of duties on the part of the authorities and certain other irregularities, the High Court had directed the Divisional Commissioner to take actions to its logical end as expeditiously as possible. Pursuant to the direction of the High Court and the report of the technical team the Collector directed the Municipal Council to recover the excess amount paid to the contractors, and blacklist them from Government work, to initiate criminal prosecution against the person(s) who had committed the irregularities, and lastly allot the repairable houses.

Analysis and Conclusion

Noticing that the appellants were all involved as persons or authorized individuals, acting on behalf of entities that were awarded the contract of construction and completion of the housing units, pursuant to the scheme, and that the spot inspection report alleged that they had not performed their task, the made the following observations:

Effect of Delay in Giving Reasoning of the Judgment by the High Court

Rejecting the first grievance of the appellants that the reasoning for the impugned judgment was given and published long after its operative portion was pronounced, i.e. a year and over three months which had prejudiced their case, the Bench stated that though it is clear that the High Court’s order, against which an aggrieved litigant has a right to approach in appeal, under special leave jurisdiction should contain reasons without which it would be well-nigh impossible to exercise that right of seeking special leave, to that extent, the appellants’ grievance was held to be justified, however, the Bench denied to hold that the absence of reasons struck at the legitimacy of the impugned judgment. The Bench stated,

“…prejudice stood off-set with the interim orders of this court, which recognized the piquancy of the situation, and directed stay of further action against the appellants.”

However, the Bench deprecated the High Court’s conduct in not furnishing reasons, either at the time of pronouncement of the operative part of the judgment, or before the commencement of the next working day (of the court).

Motive of PIL

The appellant’s next challenge to the impugned judgment emphasized the need to keep out “busybodies” who “have no interest in matters of public interest” on the ground that the petitioners-respondents had personal motive as they were former Councillors of the municipality. Rejecting the contention of the appellants, the Bench expressed,

“The cause espoused by the said individuals was undoubtedly one of public interest, because it concerned housing for the economically disadvantaged sections of society, in such great numbers.”

The scheme was meant to benefit thousands of persons, and over a thousand housing units were to be constructed and allotted to the beneficiaries. Therefore, in view of the inquiries and the reports, the Bench held that the initiation of public interest proceedings was justified even if the public interest litigants’ motives were ambiguous, or not immediately bona fide, that could not have led to dismissal of the writ petition, before the High Court.

Right to be Heard

Lastly, rejecting the main arguments of the appellants that criminal proceedings had been initiated against them even though they were not heard in the public interest proceedings, and that being adverse to them the judgment was vitiated on account of their non-participation, the Bench opined that the High Court disposed of the PILs directing the Divisional Commissioner to take appropriate steps to its logical end as expeditiously as possible, making it evident that the High Court did not by itself direct initiation of investigation nor did it direct registration of an FIR, hence, the appellants were not required to be on party array. The Bench emphasised,

“Whilst the reasoning for the impugned judgment was undoubtedly published after a long and unexplained delay, the effect of its operative directions was not to per se prosecute.”

Moreover, the constructions were sub-standard – in respect of 100 such houses, so severe that the units were unusable and dilapidated which rendered the main objective of providing housing to 1206 eligible and deserving families unfulfilled despite expenditure of substantial amounts.

Hence, rejecting the argument of the appellants that they ought to have been heard even before action was initiated as unsound, since, according to the decision of the Constitutional Bench in Lalita Kumari v. Govt. of U.P., if there are allegations with respect to commission of cognizable offences, brought to the notice of the police authorities, ordinarily an FIR has to be lodged.

Verdict

Lastly, noticing that High Court did not comment on whether the allegations were true or whether the submissions on behalf of the petitioners justified their conduct or omission, and that the FIR was registered by the police following the imperative nature of the law declared in Lalita Kumari where it was held that a preliminary enquiry ordinarily is to be eschewed whenever cognizable offences are reported, the Bench dismissed the appeals.

[Shaikh Ansar Ahmad Md. Husain v. State of Maharashtra, 2021 SCC OnLine SC 867, decided on 05-10-2021]

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Kamini Sharma, Editorial Assistant has put this report together 

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Appearance by:

For the Appellants: Shyam Divan, Senior Advocate


*Judgment by: Justice S. Ravindra Bhat 

Know Thy Judge| Justice S. Ravindra Bhat

Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J.,  dismissed the instant petition whereby the petitioner had challenged his re-incarceration contending violation of natural justice by authorities.

On 18-02-2011, the government ordered premature release of 209 prisoners who had completed imprisonment of 10 years (with remission) and above and in whose cases, favourable reports, either from the police or probation officer, had been received. The said order was challenged in Suo Motu v. State of Kerala, 2019 SCC OnLine Ker 335, before full Bench on the ground that the order was result of arbitrary exercise of power under Article 161 of the Constitution. The Court found out that power under Article 161 had been exercised without government applying its mind to the individual cases. Consequently, the impugned order was quashed and government was directed to examine the proposal for premature release of the 209 prisoners, afresh. Further, the Court directed government to consider the release of prisoners on two grounds namely, non-involvement in crime after release and favourable reports by police or probation officers.

Accordingly, a State Level Committee was constituted, which, after analysing each case, observed that among the 209 prisoners, 22 had expired, 27 had involved in criminal cases after release and the remaining 160 were not involved in any criminal activity and had lived with good conduct. Hence, the government issued an order directing 30 persons from among the 209 to be re-incarcerated, for completing the remaining period of their sentence.

The petitioner being one among the 30 ordered to be re-incarcerated was issued with summons from the trial court. Aggrieved by the order for his re-incarceration, the petitioner contended that government could not have ordered his re-incarceration without even affording an opportunity of hearing and the reason for re-incarceration being not discernible from the summon order, was indicative of absolute non-application of mind. It was further contended that,

Quashing of order for release by the Court did not absolve the government from complying with the fundamental principles of natural justice and fair play.

 The Bench observed the order of full Bench that in case of the Government failing to take a decision within six months, it would be deemed that there was no exercise of power under Article 161 in favour of the prisoners concerned and steps should be taken to re-incarcerate such prisoners for serving out the remainder of their sentence. The Bench stated,

All 209 prisoners were liable to be re-incarcerated, but, on humanitarian consideration, the Full Bench allowed the Government to consider the cases of prisoners who could be granted exemption from re-incarceration based on their exceptional conduct and favourable reports from all authorities.

Therefore, the consideration was to be made with respect to the prisoners who could be exempted and not about those who were to be re-incarcerated. Being so, the principle of audi alteram partem had no application in the case of petitioner. The petitioner got involved in two crimes after his release and did not satisfy the strict conditions imposed for being exempted from re-incarceration. Referring to the order of Full Bench, the Court emphasised it needs no reiteration that interim orders, unlike judgments, do not have any persuasive effect. [Ramesh K.S v. State of Kerala,  2021 SCC OnLine Ker 600, decided on 05-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph has reiterated the principles of natural justice as follows:

(1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

(2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.

(3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.

(4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.

(5) The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice

The court was hearing the challenging the cancellation of tender on the ground that it was “impractical” to go ahead with such tender. It was argued that such cancellation was illegal and arbitrary and against the principles of natural justice.

Applying the aforementioned principles to the facts of the case, the Court came to the conclusion that the respondent has been kept completely in the dark so far as the cancellation of the award of tender in his favour is concerned, the audi alteram partem rule having been breached in its entirety. Prejudice has indeed been caused to his client from the fact that one year of the contract period has been taken away.

[State of UP v. Sudhir Kumar Singh,  2020 SCC OnLine SC 847, decided on 16.10.2020]