18 Sep 2020 5:16 AM GMT
The High Court of Bombay at Goa has ruled that principles of natural justice are not violated if the Institution of Lokayukta decides to implead certain persons as parties to a proceeding in exercise of suo-motu power.Justice DS Naidu dismissed a writ petition filed by members of a panchayat who were added as parties on the allegation of helping the Sarpanch in committing certain illegal...
The High Court of Bombay at Goa has ruled that principles of natural justice are not violated if the Institution of Lokayukta decides to implead certain persons as parties to a proceeding in exercise of suo-motu power.
Justice DS Naidu dismissed a writ petition filed by members of a panchayat who were added as parties on the allegation of helping the Sarpanch in committing certain illegal acts. Court concluded that giving notice to every proposed party inevitably results in delay and "docket deluge clogging the judicial avenues, is an unaffordable luxury."
A complaint was filed before the Lokayukta about the illegalities allegedly committed by a Gram Panchayat. From the beginning, the Sarpanch and Deputy Sarpanch have been on record as the respondents. The allegations revolve around the shifting of a bar license from one house to another and issuing of an NOC for running a general store in that particular house. The house to which the bar license was shifted and to which NOC was granted for running a general store, in the Lokayukta's prima facie observation, is an illegal structure. It belongs to the Sarpanch.
The authorities initiated no action, though the complainants brought the illegalities to their notice. So the aggrieved persons complained to Lokayukta. The beneficiary of the illegal acts is said to be the very Sarpanch. At the preliminary stage, the Lokayukta has found the complaint as neither frivolous nor vexatious. Instead, it has found sufficient and reasonable grounds to proceed further. Moreover, it has found that some panchayat members helped the Sarpanch, by passing a resolution within no legal basis.
Therefore, Lokayukta invoked Rule 9 of the Goa Lokayukta Rules 2012 and "deemed just and proper to add the panchayat members" as respondents for it deciding "effectively and completely the question involved". After adding those panchayat members as the additional respondents, Lokayukta issued notice to them under Section 13 (1) of the Goa Lokayukta Act 2011.
Thus, the present writ petition was filed questioning the 'procedural impropriety' in Lokayukta adding them as parties to the proceedings.
Advocate A Kakodkar appeared on behalf of the petitioners and submitted that Lokayukta's order, dated March 9, 2020, offends the principles of natural justice. He added that Section 12 provides an opportunity of hearing to the respondents during the preliminary inquiry. Though the expression used is 'may', it shall be read as 'shall'. If the Lokayukta finds the complaint frivolous, it does not proceed with the main investigation. That is, it discharges the respondent. Now, the petitioners have missed out on that step for lack of notice, Kakodkar submitted.
He also contended that Rule 9 of the Rules requires the Lokayukta to follow the procedural safeguards as set out under Rule 10 of Order I of CPC in impleading a person. According to him, the Lokayukta's suo motu power to add parties finds no exemption from the grasp of natural justice. Therefore, pre-impleadment notice must be read into the procedure even under Rule 10 of Order I of CPC, Kakodkar submitted relying on several decisions.
On the other hand, Advocate Nigel Da Costa Frias, appeared on behalf of the original complainants in the matter and submitted that there is no question of natural justice violation. To elaborate, he submits that once the petitioners enter appearance before Lokayukta, they can articulate all their pleas and convince the Institution why they should not be proceeded against. Thus, no prejudice is caused to the petitioners, either, Adv Costa Frias argued.
After hearing submissions of all parties, Court examined the Goa Lokayukta Act 2011 and Goa Lokayukta Rules, 2012 and said-
"The Lokayukta sets out to investigate under three circumstances:
(1) On a Government's reference under Section 9(2);
(2) on a Complaint by any person other than a public functionary; and
(3) suo motu.
"Under Section 12 (Lokayukta Act), the Lokayukta may "make such preliminary inquiry as he deems fit". It is "for ascertaining whether there exists reasonable ground for [his] conducting an investigation." The tenor of the provision reveals that the preliminary inquiry is optional, but if it takes place a finding on the nature of the complaint is mandatory. As to the procedure to be adopted in the preliminary inquiry, sub-section (2) provides the answer. The procedure "shall be such as the Lokayukta or Upa-Lokayukta deems appropriate in the circumstances of the case". Indeed, if—only if —the Institution "deems it necessary", it will "call for the comments of the public functionary concerned." Therefore, the notice before the preliminary inquiry, as contended by the petitioners, cannot be mandatory, and 'may' cannot be read as 'shall'."
In addition to this, Justice Naidu said that indisputably, Rule 10 of Order 1 of CPC empowers the court to implead a party suo motu if it reckons that the party's presence is necessary or proper. It may be against the wish of the plaintiff, the so called dominus litus, or the defendants already on record, who may, technically speaking, feel embarrassed with the proposed party's presence. If put on notice, even the proposed party may object. But none of these three eventualities deters the court from exercising its suo motu power, Court concluded.
In conclusion, before dismissing the petition, Justice Naidu noted-
"This approach—not notifying the proposed party before his impleadment—also serves a public purpose. The court's suo motu statutory power remaining unimpaired even in the face of objections, pre-impleadment notice only results in further delay. Even in the age of instant communication, now termed an era of infodemic, service of notice and summons is the single most time-consuming process or the procedural hassle every court faces. For courts are the last bastions to fall to techno-invasion. It has taken a pandemic, almost.
Put plainly, notice to every proposed party inevitably results in delay. Docket deluge clogging the judicial avenues, it is an unaffordable luxury. Instead, if proposed parties are brought on record, not every one of them objects. Yet those who want to object can always do so, as do the defendants or respondents on record from inception. Thus, the delays stand minimised.
Under these circumstances, I see no merit in the petitioners' contentions. The Lokayukta's order suffers from no legal infirmity, including that of violating the principles of natural justice."