Cosmopolitan Club Vs the Karnataka Lokayukta

THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE IMPUGNED NOTICE BEARING NO.NAM.NA.SA.THI/(LOOPRA)/C.R./01/2015-16 DATED 1.4.2015 ISSUED BY THE R-2 VIDE ANN-A. ISSUE A WRIT OF CERTIORARI AND QUASH THE IMPUGNED ORDER PASSED IN COMPT/LOK/BD/1010/2015/ARE-5 DATED 17.3.2015 BY R-1 LOKAYUKTA VIDE ANN-B & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D.K. SINGH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE D.K. SINGH)

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The petitioner is a Co-operative Society registered under the Karnataka Societies Registration Act, 1960. This Society runs the Cosmopolitan Club situated in Tiptur, Tumakuru District. One Mr.S.Prabaiha had filed a complaint in respect of the buildings constructed by the petitioner within Tiptur City Municipal Council limits in Ward No.7, Khata No.729/539 and adjoining to the said building towards West from 144.72 kms. to 164.54 kms. State Highway No.2, Mandya-Hadagali Road is situated. The allegation is that the said building constructed by the Cosmopolitan Club is in violation of the Government Circular No.PWD:362:CRM:98 dated 09.10.1998. It is further

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alleged that the building has been constructed in violation of licence conditions and some part of building is unauthorised.

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It is further alleged that the municipal authorities have connived with the Management of the Cosmopolitan Club in allowing the unauthorised construction in violation of the Circular mentioned above. The Lokayukta, vide order dated 16.03.2015 directed the Commissioner, CMC, Tiptur, to hold an enquiry in the matter and ascertain whether in Khata No.729/539, the Cosmopolitan Club has constructed the building in violation of the licence conditions and also enquire whether the said Government Circular dated 09.10.1998 has been violated. The enquiry should also be made whether the building has been come up in accordance with the licence conditions or in violation of the licence conditions.

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In compliance of the said order dated 16.03.2015 passed by the Lokayukta, the petitioner has been issued notice by the Commissioner, CMC, Tiptur. After the order dated 16.03.2015 was passed, the Additional Registrar Enquiries-5, Karnataka Lokayukta, Bengaluru, had issued letter to the Commissioner, CMC, Tiptur directing him to comply with the

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order of the Lokayukta in accordance with law and report the compliance to the office of the Lokayukta.

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In compliance of the said order dated 17.03.2015

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read with the letter of the Additional Registrar Enquiries-5, notice has been issued to the petitioner by the Commissioner, CMC, Tiptur, requiring him to furnish the necessary documents in respect of the construction of the building by the Cosmopolitan Club over Khata No.729/539 in Ward No.7 within the Tiptur CMC limits. The petitioner, instead of furnishing the necessary documents and information, has filed this petition challenging the powers of the Lokayukta to conduct an enquiry against the petitioner.

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Smt.Swamini Ganesh Mohanambal, learned counsel for the petitioner summits that under Section 7 of the Karnataka Lokayukta Act, 1984 (for short, the Act), the Lokayukta has the power to investigate the complaint in respect of the public servants and the other functionaries mentioned therein, but the Lokayukta does not have the power to investigate the grievances against a private person. She further submits that the Lokayukta has ordered the

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investigation against the Society which is a private person and that is not within the scope of Section 7 of the Act. She, therefore, submits that the entire proceedings undertaken by the Lokayukta including the orders dated 17.03.2015 and the impugned letter dated 01.04.2015 are only without jurisdiction and the same are liable to be set aside.

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On the other hand, Mr.K.Prasanna Shetty, learned counsel appearing for the Lokayukta submits that holding of an enquiry is not barred under Section 7 of the Act. The Lokayukta does not have the power to take action against a private person but holding an enquiry for a violation of law or corruption by a public servant giving benefit to a private person is not barred under Section 7 of the Act. The action taken after enquiry would be against the Officials involved and not against the petitioner.

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Mr.Vinay N., learned counsel appearing for the CMC, Tiptur, also supports the said contention and he further submits that only at the stage of enquiry, the petitioner has approached this Court and the writ petition is not maintainable.

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8. We have considered the submissions.

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9. Section 7 of the Act reads as under:

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"7. Matters which may be investigated by the Lokayukta and an Upalokayukta.- (1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by or with the general or specific approval of.-

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(a) (i) the Chief Minister; (ii) a Minister;

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(iii) a member of the State Legislature; or

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(iv) the Chairman and the Vice-Chairman (by whatever name called) or a member of an authority, board or a committee, a statutory or non-statutory body or a corporation established by or under any law of the State Legislature including a society, cooperative society or a Government company within the meaning of section 617 of the Companies Act, 1956, nominated by the State Government; in any case where a complaint involving a grievance or an allegation is made in respect of such action.

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(b) any other public servant holding a post or office

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carrying either a fixed pay, salary or remuneration of more than rupees twenty thousand per month or a pay scale the minimum of which is more than rupees twenty thousand, as may be revised, from time to time in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Lokayukta, recorded

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in writing, the subject of a grievance or an allegation;

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(2) Subject to the provisions of this Act, an Upalokayukta may investigate any action which is taken by or with the general or specific approval of, any public servant not being the Chief Minister, Minister, Member of the Legislature, secretary or other public servant referred to in sub-section (1), in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Upalokayukta, the subject of a grievance or an allegation;

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(2A) Notwithstanding anything contained in subsections (1) and (2), the Lokayukta or an Upalokayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the State Government.

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(3) Where two or more Upalokayuktas are appointed under this act, the Lokayukta may, by general or special order, assign to each of them matters which may be investigated by them under this Act:

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Provided that no investigation made by an Upalokayukta under this Act, and no action taken or things done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order.

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(4) Notwithstanding anything contained in subsections (1) to (3) when an Upalokayukta is vacant by reason of his death, resignation, retirement, removal or otherwise or] 2 when an Upalokayukta is unable to discharge his functions owing to absence, illness or any other cause, his function may be discharged by the other Upalokayukta, if any and if there is no other Upalokayukta by the Lokayukta.

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(5) Notwithstanding anything contained in subsections (1) to (4), if in the opinion of Lokayukta, he is disabled to hear or consider or in any manner to deal with or dispose any one of the cases or complaints or matters etc., for the reasons to be recorded in writing, he may by order, in writing, refer or transfer such cases or complaints or matters to any one of the Upalokayuktas:

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Provided that, when the Upalokayukta takes up such referred or transferred cases or complaints or matters, he shall be deemed to be competent and shall be entitled to exercise all the powers of the Lokayukta for the purposes of disposal of such cases or complaints or matters in the same manner and to the same extent of the Lokayukta.

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Provided further that the action taken or orders made by the Upalokayukta in the aforesaid matter shall be as effective and valid as if it was taken or done by the Lokayukta.

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Provided also that, no action taken or things done by Upalokayuktha in respect of such referred or transferred cases or complaints or matters shall be

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open to question on the ground only that such investigation relates to a matter which is not assigned to him under this Act."

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Thus, the power to investigate a complaint involving a grievance in respect of the action taken by the public servant mentioned under Section 7 of the Act, is within the jurisdiction of Lokayukta. If the private person is also involved along with the public servant, the jurisdiction of the Lokayukta does not come to a halt. The investigation of an act or a complaint is different than taking action after completing the enquiry. Section 9 of the Act provides the provisions relating to complaints and investigation and it does not bar the Lokayukta to proceed with the complaint where there is involvement of a public servant for giving benefit to a private person against the law or unauthorisedly.

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The complaint essentially is against the public servants i.e. the Commissioner and the Engineer for allowing the Cosmopolitan Club to put up the building in violation of the Government Circular dated 09.10.1998 and the license conditions. If after investigation, it is found that the Cosmopolitan Club has constructed the building in violation of

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the Circular and the license conditions, the action would be taken by the municipal authorities and not by the Lokayukta. However, in the investigation, if it comes that the public servants i.e. the employees / Officers of the Municipal Corporation were involved in allowing the Cosmopolitan Club to construct the building in violation of the Government Circular dated 09.10.1998 and the licence conditions, the Lokayukta will get the jurisdiction to pass an order against such public servants.

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Therefore, we do not find that this Court should interfere at the stage of holding of an enquiry / investigation in respect of the allegation of violation of the Government Circular dated 09.10.1998 and the licence conditions while putting up the building by the Cosmopolitan Club. However, after the enquiry, it would be the jurisdiction of the municipal authorities to take appropriate action if the allegations are found to be true.

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Thus, we dispose of this writ petition directing the petitioner to submit the required documents as per the notice dated 01.04.2015 issued by the Municipal Commissioner to the

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petitioner and participate in the enquiry. The enquiry must be completed within a span of two months and after conducting the enquiry, the CMC, Tiptur, will submit a report to the Lokayukta for further action against the Officers involved if the allegations are found to be true.

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Sd/(D.K. SINGH) JUDGE

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Sd/(VENKATESH NAIK T) JUDGE

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RV

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List No.: 1 Sl No.: 49

Cosmopolitan Club v. the Karnataka Lokayukta

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Cosmopolitan Club v. the Karnataka Lokayukta

Case brief

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