SHAIKH ANSAR AHMAD MD. HUSAIN versus THE STATE OF MAHARASHTRA & ORS. on 5 October 2021

[2021] 11 S.C.R. 811

SHAIKH ANSAR AHMAD MD. HUSAIN

v.

THE STATE OF MAHARASHTRA & ORS.

(Civil Appeal No. 695 of 2021)

OCTOBER 05, 2021

[L. NAGESWARA RAO AND S. RAVINDRA BHAT, JJ.]

Judgment/Order: Reasoned judgment – Requirment to givereasons in the judgment/order – Grievance of the appellants is thatthe reasoning for the impugned judgment was given and publishedlong after its operative portion was pronounced – The operativeportion of the judgment was pronounced on 27.06.2019 – Thereasons were published on 05.10.2020 – Held: High Court’s conductin not furnishing reasons, either at the time of pronouncement ofthe operative part of the judgment, or before the commencement ofthe next working day (of the court) strongly deprecated – Judicialdeprecation.

Public interest litigation: Impugned judgment passed in writpetition filed as Public interest litigation (PIL) challenged by theappellants on the ground that the PIL was motivated – Held: Thereis no doubt, that PIL is meant to be entertained, for bona fide causes,and not to aid either misguided individuals in their quest for publicity,or for wreaking vendetta on public officials or institutions – Thecause espoused by the writ petitioners was undoubtedly one of publicinterest, because it concerned housing for the economicallydisadvantaged sections of society, in such great numbers – Thescheme was meant to benefit thousands of persons, and over athousand housing units were to be constructed and allotted to thebeneficiaries – In view of the inquiries and the reports, conductedand prepared during the proceedings, the initiation of public interestproceedings, were justified, having regard to the contents of suchreports – Even if the public interest litigants’ motives were ambiguous,or not immediately bona fide, that could not have led to dismissal ofthe writ petition, before the High Court – The objection as to lackof standing of the public interest litigants, therefore, is without merit– Housing.

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APublic interest litigation: Housing scheme – Allegations offailure and neglect on the part of the municipal authorities in regardto completion of the scheme – In the criminal public interestlitigation, the respondents (PIL petitioners) sought directions to theUnion of India, the State of Maharashtra, the Maharashtra Housingand Urban Development Authority (MHADA) and state officials toBinitiate criminal proceedings against the responsible officers andoffice bearers of Municipal Council, Naldurg and concernedcontractors for misappropriation of government funds inimplementation of the housing scheme in the municipality – The PILpetitioners had alleged the utter mismanagement in terms of whichCas many as 1.05 lakh dwelling units were to be constructed andhanded over to the eligible individuals – The scheme contemplateda substantial funding by the central government and the rest of thefunding to be borne by the allottees – As against the targeted 1206housing units to be constructed, 737 beneficiaries belonged to thereserved category and the rest to the general category – InspectionDreports and affidavits of MHADA as well as the DivisionalCommissioner revealed that only 302 housing units were constructedin different localities in Naldurg, of which 202 could be used and100 were in an unusable and dilapidated condition – The affidavitsfiled on behalf of authorities revealed that excess payments ofE`1,52,81,846/- and `90,97,771/- were made – After taking note ofaffidavit of the Commissioner, High Court disposed of PILs directingthe respondents to take steps in light of the reports, and actionoutlined in the affidavit, “to its logical end” as expeditiously aspossible – In the instant appeal, the main argument of the appellantwas that criminal proceedings were initiated against them evenFthough they were not heard in the public interest proceedings, andthat being adverse to them the judgment was vitiated on account oftheir non-participation – Held: High Court had not by itself directedinitiation of investigation nor did it direct registration of an FIR –High Court had directed respondents to take steps in light of theirGreports, and action outlined in the affidavit, “to its logical end” –The material on record before the High Court in the form ofinspection report and further materials including the DivisionalCommissioner’s affidavit, showed irregularities of a severe nature– The constructions, according to the reports, were sub-standard inrespect of 100 such houses, so severe that the units were unusableH

– The main objective of providing housing to 1206 eligible anddeserving families remained unfulfilled despite expenditure ofsubstantial amounts – In the circumstances, the argument of theappellants that they ought to have been heard even before actionwas initiated, does not commend to this Court; it is not sound –There were materials suggesting serious irregularities – Thegovernment allowed the Divisional Commissioner to affirm in theaffidavit filed by him that criminal proceedings would be initiated –In such circumstances, the observations of the High Court to takethe matter to the logical end have to be, therefore, construed in thatcontext – Whether the allegations are true or whether thesubmissions on behalf of the petitioners justified their conduct oromission is something upon which the High Court could not andcorrectly did not comment – As far as the FIR itself was concerned,the police had no choice given the imperative nature of the lawdeclared in Lalita Kumari where a preliminary enquiry ordinarily isto be eschewed whenever cognizable offences are reported – Thus,the impugned order not interfered with.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1. The first grievance of the appellants is that thereasoning for the impugned judgment was given and publishedlong after its operative portion was pronounced. The operativeportion of the judgment was pronounced on 27.06.2019. Thereasons were published on 05.10.2020. It is clear that the HighCourt’s order, against which an aggrieved litigant has a right toapproach this court, under special leave jurisdiction, shouldcontain reasons, without which it would be well-nigh impossibleto exercise that right of seeking special leave, and in many cases,urged ad-interim and, possibly, ex-parte relief. In this case, theHigh Court should have furnished the reasons for the operativeportion of its order. To that extent, the appellants’ grievance isjustified. This court is however reluctant to hold – having regardto the circumstances and the facts on the record - that the absenceof reasons struck at the legitimacy of the impugned judgment. Itcaused prejudice no doubt, to the extent that the appellants wereunable to furnish grounds on which their special leave petitionswere based. However, that prejudice stood off-set with the interimorders of this court, which recognized the piquancy of the situation, ABC

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Aand directed stay of further action against the appellants. In viewof these special circumstances, the impugned order should notbe set aside. However, the High Court’s conduct in not furnishingreasons, either at the time of pronouncement of the operativepart of the judgment, or before the commencement of thenext working day (of the court) is strongly deprecated.B[Para 25][827-E-H; 828-A-B]

2.1 The appellant’s next challenge to the impugnedjudgment is the ground that the public interest litigation wasmotivated, and that they were not parties. There is no doubt,that public interest litigation is meant to be entertained, for bonaCfide causes, and not to aid either misguided individuals in theirquest for publicity, or for wreaking vendetta on public officials orinstitutions. It was urged that the said writ petitioners werecouncillors, and politically motivated. That fact is insufficient toallow the appeals. The cause espoused by the said individualsDwas undoubtedly one of public interest, because it concernedhousing for the economically disadvantaged sections of society,in such great numbers. The scheme was meant to benefitthousands of persons, and over a thousand housing units were tobe constructed and allotted to the beneficiaries. In view of theinquiries and the reports, conducted and prepared during theEproceedings, there could have been no manner of doubt that theinitiation of public interest proceedings, were justified, havingregard to the contents of such reports. In the present case, evenif the public interest litigants’ motives were ambiguous, or notimmediately bona fide, that could not have led to dismissal of theFwrit petition, before the High Court. The objection as to lack ofstanding of the public interest litigants, therefore, is without merit.[Paras 26, 27, 29][828-C, D-E; 830-G-H; 831-A-C]

Jasbhai Desai v. Roshan Kumar [1976] 3 SCR 58;Environment and Consumer Protection Foundation vUnon of India & Ors. (2017) 16 SCC 780 – relied on.

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2.2 The record thus discloses that two PILs had been filedcontaining somewhat similar allegations, i.e. the failure andneglect on the part of the municipal authorities of Naldurg in

regard to completion of the scheme. The public interest litigantshad alleged the utter mismanagement of IHSDP in terms of whichas many as 1.05 lakh dwelling units were to be constructed andhanded over to the eligible individuals. The scheme contemplateda substantial funding by the central government and the rest ofthe funding to be borne by the allottees. As against the targeted1206 housing units to be constructed, 737 beneficiaries belongedto the reserved category and the rest to the general category.The cost of construction was estimated to be `16,08,91,396/-.The total cost was `20,69,04,514/-. Eventually, the material inthe form of inspection reports and affidavits of MHADA as wellas the Divisional Commissioner revealed that only 302 housingunits were constructed in different localities in Naldurg, of which202 could be used and 100 were in an unusable and dilapidatedcondition. The proceedings before the High Court led to theinspection as well as the verification of accounts as a consequenceof which the affidavits filed on behalf of the authorities revealedthat excess payments of `1,52,81,846/- and `90,97,771/- weremade. [Para 30][831-C-G]

3. The main arguments of the appellants are that criminalproceedings have been initiated against them even though theywere not heard in the public interest proceedings, and that beingadverse to them the judgment is vitiated on account of their non-participation. A grievance is also made out that of the dwellingunits constructed by the contractors, no deficiency was pointedout by the public agency, i.e. the municipality and that even civilaction stood precluded because the contractual liability periodhad lapsed. The impugned judgment disposed of both the PILs.Essentially, the first direction issued by the High Court, i.e. tothe Divisional Commissioner to take steps referred to in affidavitin reply in general and para 8 in particular “to its logical end asexpeditiously as possible” appears to be the rub in this caseinasmuch as the appellants grouse is that it has led to lodging ofan FIR. The affidavit recounted the objections of the IHSDPscheme and indicated the state of affairs with respect to thecompleted dwelling units, i.e. 302 houses. The affidavit citedthe report dated 20.04.2019 and the steps recommended inthe meeting of the Committee on 22.04.2019. [Paras 31, 32][831-G-H; 832-A-D]

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A4.1 It is quite evident that the High Court did not by itselfdirect initiation of investigation nor did it direct registration ofan FIR. The Divisional Commissioner had deposed thoseinstructions had been given to take such steps. The High Court,therefore, ordered that those steps be taken to their logical end.Whilst the reasoning for the impugned judgment was undoubtedlyBpublished after a long and unexplained delay, the effect of itsoperative directions were not to per se prosecute. It merelyrequired the Divisional Commissioner to take the necessary steps,which were not limited to the launching of criminal prosecutionbut also taking steps towards reconstruction of the flats for theCintended beneficiaries. It is further a matter of record that whenthe FIR was lodged in December 2019, all the present appellants– all of whom were not before the High Court - were named asaccused. Another important fact which requires to be noticed isthat several of these appellants had approached this Court onthe ground that their applications for anticipatory bail had beenDrejected; they filed special leave petitions along with applicationsto file for special leave since they were not parties in the HighCourt. Those proceedings were entertained and this court hadgranted interim orders protecting them from coercive action.[Paras 33, 34][833-C-G]E

4.2 The material on record before the High Court in theform of inspection report dated 20.04.2019 and further materialsincluding the Divisional Commissioner’s affidavit, showedirregularities of a severe nature. The constructions, accordingto the reports, were sub-standard – in respect of 100 such houses,Fso severe that the units were unusable. The main objective ofproviding housing to 1206 eligible and deserving families remainsunfulfilled despite expenditure of substantial amounts. In thecircumstances, the argument of the appellants that they ought tohave been heard even before action was initiated, does notcommend to this Court; it is not sound. [Para 35][833-G-H;G834-A-B]

5. In the present case, there were materials suggestingserious irregularities. The government allowed the DivisionalCommissioner to affirm in the affidavit filed by him on 12.06.2019that criminal proceedings would be initiated. In suchHcircumstances, the observations of the High Court to take the matter to the logical end have to be, therefore, construed in thatcontext. Whether the allegations are true or whether thesubmissions on behalf of the petitioners justified their conductor omission is something upon which the High Court could not,and in the opinion of this court correctly, did not comment. As faras the FIR itself was concerned, the police had no choice giventhe imperative nature of the law declared in Lalita Kumari wherea preliminary enquiry ordinarily is to be eschewed whenevercognizable offences are reported. [Para 36]834-G-H; 835-A-B]

Lalita Kumari v. Govt. of UP (2014) 2 SCC 1 : [2013]14 SCR 713 – followed.

Balaji Baliram Mupade & Anr v. The State ofMaharashtra & Ors. AIR 2020 SC 5758 OrientalInsurance Co. Ltd. v. Zaixhu Xie & Ors. (2020) SCCOnline SC 1145; Sudipta Chakrobarty & Anr. v.Ranaghat S.D. Hospital & Ors. AIR 2021 SC 3344;State of U.P. & Anr. v. Satya Narain Kapoor (dead) byLrs. & Ors (2004) 8 SCC 630; State of Uttaranchal v.Balwant Singh Chaufal & Ors (2010) 3 SCC 402 :[2010] 1 SCR 678 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No.695 of2021.

From the Judgment and Order dated 27.06.2019 of the High Courtof Judicature at Bombay Bench at Aurangabad in Public Interest LitigationNo.70 of 2014.

With

Civil appeal nos. 696, 1157, 700, 699, 698, 1158, 697, 1156, 604,605 and 603 of 2021.

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AShyam Divan, Chander Uday Singh, Sr. Advs., NishantRamakantrao Katneshwarkar, Shivaji M. Jadhav, Anish R. Shah, SamirPatel, Brij Kishor Sah, Ms. Qurratulain, Aditya S. Jadhav, NicholasChoudhury, Shiv Ram Pandey, Ms. Amandeep Kaur, Dr. R. R.Deshpande, Abhay Anil Anturkar, M/s Dr. R. R. Deshpande AndAssociates, Pai Amit, Rahul Chitnis, Sachin Patil, Aaditya A. Pande,BGeo Joseph, Sanjay Upadhyay, Mrs. Mayuri Raghuvanshi, VyomRaghuvanshi, Salik Shafique, Shrikishan Shinde, Kazi Sangay Thupden,Viddusshi Shandilya, Chirag M. Shroff, Ms. Abhilasha Bharti, SushantDogra, Rahat Bansal, Ms. Pankhuri Bhardwaj, Advs. for the AppearingParties.CThe Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. Special leave granted in all the petitions. The appeals wereheard with consent of counsel appearing for the parties to theseDproceedings.

2. The grievance of the appellants in these batch of appeals iswith respect to a common judgment of the Aurangabad Bench of theBombay High Court.[1] In the criminal public interest litigation, therespondents (original writ petitioners, hereafter “PIL petitioners”) soughtEdirections to the Union of India, the State of Maharashtra, the MaharashtraHousing and Urban Development Authority (MHADA) and stateofficials to initiate criminal proceedings against the responsible officersand office bearers of Municipal Council, Naldurg (hereafter“municipality”) and concerned contractors for misappropriation ofgovernment funds in implementation of the housing scheme in theFmunicipality. Some appellants had filed criminal petitions, opposing thecriminal proceedings, which were disposed of.

3. The PIL petitioners claimed to be social activists and formerCouncillors of the municipality who were involved in social activities,reforms and reconstruction of the society which included running a libraryG(Lokmanya Book Library at Naldurg). They had also organized variouscamps like literacy camp for illiterate people, chalice (Panpoi) at publicplaces during summer season, etc.

1 dated 27.06.2019 in Criminal Public Interest Litigation No. 6/ 2018, with PublicInterest Litigation No. 70/2014 and Criminal Application Nos. 2075, 2091 and 2107/H2019.

4. The Union of India implemented the Integrated Housing andSlum Development Programme (IHSDP), through the State Government,under the “Jawaharlal Nehru National Urban Renewal Mission”(hereafter “the Mission”) for providing basic services to the urban poorincluding security of tenure of affordable prices, improved housing, watersupply, sanitation and ensuring delivery through convergence of otherexisting universal services of the government for education, health andsocial security. The Mission also aimed to ensure that the urban poorwere provided housing. The scheme applies to all cities/towns under theMission. The guidelines for Basic Services to the Urban Poor (BSUP)and IHSDP were issued in December 2005; pursuant to which, the stategovernment appointed urban local bodies as nodal agencies. In this case,MHADA is the nodal agency.

5. In terms of a government resolution dated 03.02.2009, theconstruction cost for each dwelling house unit was `80,000/-. Theminimum floor area of such dwelling house was to be 25 sq. metres at aminimum, with two rooms, a kitchen and a toilet bathroom. The fundsfor implementing the said scheme were in the ratio of 80:20 (betweenthe Central Government and the State Government-Urban Local Bodies).Further, beneficiaries under the scheme had to contribute a minimum12%, and in case of reserved category the contribution was to be 10%.The nodal agency designated for implementation of the said schemewas responsible for inviting proposals from urban local bodies and thus,Respondent Nos. 3 and 6 – which are the nodal agencies - wereresponsible for and had control over implementation of the scheme withinthe state government. Naldurg in Osmanabad district was included underthe scheme of IHSDP for providing houses to the poor people.

6. Pursuant to the scheme, a detailed project report was prepared,in terms of which 1206 houses for the poor were to be constructed. 737beneficiaries belonging to reserved category and 469 from generalcategory were identified as beneficiaries of the project. The cost ofeach house was fixed at `1,00,551/-; the total cost of the project wasfixed at `20,69,04,514/-, of which cost for construction was `16,08,91,396/- and `4,11,17,000/- was the cost towards infrastructure. The municipalitypublished a tender notice[2]. The estimated cost of the work in the tenderwas `15,08,91,396/- and the time stipulated for completion of construction 2 In the “Daily Sakal”, in its issue dated 26.08.2008.

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Aof 1206 dwelling units was 18 calendar months, including the monsoonseason. Though the last date for opening of tender bids was 22.09.2008,the municipality did not wait till that date and the offers were placedbefore its special general meeting held on 20.09.2008. Respondent No.8’s tender- being the lowest- was to be accepted and work order was tobe issued in its favour after accepting their security deposit. On 22.09.2008Bformalities for execution of lease agreement between the state and themunicipality, leasing lands at Survey Nos. 29 and 236 (measuring 20hectares and 20 ares) for implementation of the scheme, were completed.The municipality issued the work order on 07.10.2008 and the same dayan agreement was entered into between the municipality and the privateCrespondent; the municipality released 12% of the total cost, i.e.,`1,44,00,000/- as mobilization advance to Respondent No. 9 on 20.12.2008.

7. The PIL petitioners alleged that though in terms of the contract,Respondent No. 9 had to construct 1206 house units within 18 months,as on the date of filing of the litigation it had constructed only 30 units.DThey alleged that the quality of work carried out by Respondent No. 9was very poor and the officials (i.e. MHADA, municipality, etc.) did notinspect or supervise the work, and did not submit the quarterly reportsas required under the scheme. While MHADA had issued notices to themunicipality from time to time directing it to submit quarterly progressEreport, the latter had not complied. Contrary to the directions of thecentral and state governments, the municipality diverted the funds meantfor the said development project, for other works. It was submitted thatdespite the requirement that the work of infrastructure be carried outonly after completion of 50% of construction of dwelling house units,Respondent No. 7 straightaway allotted the work of infrastructure inFfavour of Respondent No. 10 prior to achieving such a stage ofconstruction and without inviting any intenders from the contractorsauthorized by MHADA. Various irregularities, such as higher fixation ofprice of dwelling house, i.e., `1,00,551/- instead of ` 80,000/-, failure tocomplete the project, and various other omissions were alleged. ThePIL petitioners also relied on reports dated 04.11.2018 and 15.03.2012,Grespectively.

8. After considering the pleadings of the PIL petitioners, and theofficial respondents, the court, on 02.04.2019 issued the followingdirections:“The Divisional Commissioner, Aurangabad Division,HAurangabad, shall convene a meeting of Collector, SHAIKH ANSAR AHMAD MD. HUSAIN v. THE STATE OFMAHARASHTRA [S. RAVINDRA BHAT, J.]

Osmanabad and other officers including technical personsfrom MHADA, who is acting as a Nodal agency, the ChiefOfficer of the Municipal Council, Naldurg, within a periodof four weeks from today and shall appraise this Court byfiling an affidavit as regards the steps he propose to take inthe matter of implementing the scheme and in question; inaddition to looking into the irregularities and action to beinitiated against the defaulters. Let this exercise be completedby June 17, 2019, by filing an affidavit by the DivisionalCommissioner, Aurangabad Division, Aurangabad.”.

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9. Pursuant to the above order, the Divisional Commissioner filedhis affidavit inter alia stating that for proper action, by order dated05.04.2019, he had constituted a committee under the chairmanship ofthe Chief Officer of the MHADA, along with the other four members[3]for spot inspection and to submit a status report regarding implementationof the scheme and other related information. He deposed also that thesaid committee submitted its report on 20.04.2019 listing several illegalitiesand irregularities connected with the implementation of the scheme, andproposed remedial action. It was stated that the committee suggestedthat since both the schemes i.e., IHSDP and Basic Services to UrbanPoor had ended on 31.03.2017, the unallotted houses constructed underthe said scheme may be made available under the Pradhan Mantri AwasYojna (PMAY) in view of the G.R. dated 25.09.2019. It was furthersuggested that- C

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a)155 houses constructed by the municipality required minorrepairs, after such repairs they could be allotted to theoriginal eligible beneficiaries under the provisions of G.R.dated 25.09.2018.

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b)45 houses needing major repairs to be allotted to eligiblebeneficiaries under the said G.R. as per the scheme.

c)100 houses constructed at Vasant Nagar that could not berepaired were to be demolished. After preparing the newreport under the PMAY, houses were to be constructedGand allotted to the eligible beneficiaries under the scheme.

3 a) Regional Deputy Director Municipal Administration, Officer of DivisionalCommissioner, Aurangabad, b)Executive Engineer, MHADA Aurangabad, c) AssistantDirector, Reconciliation, Office of Divisional Commissioner, Aurangabad, d) AccountsOfficer, Municipal Administration, Office of Divisional Commissioner, Aurangabad H

A10. The affidavit also referred to a meeting of officials on22.04.2019 conducted pursuant to directions of the court, wherein thecommittee’s report was considered, after which the DivisionalCommissioner issued the following directions:

i)The Collector, Osmanabad to conduct the technical valuationBof the work done under her supervision and submit a reportregarding work construction of houses and basic amenitiesalong with quality. For this purpose, the Commissionerconstituted a committee chaired by the Executive Engineer,MHADA under the overall supervision of the Collector,Osmanabad.

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ii)If financial irregularities had occurred, amounts were to berecovered from the person(s) responsible for it.

iii)After receipt of the technical committee’s report, actionagainst those responsible for irregularities was to be takenDas per law.

11. The Collector, Osmanabad submitted her report dated03.06.2019, which stated that directions were issued to the Chief Officerof the municipality to recover the excess amount paid to the contractors,to black list them for Government work, and also to initiate criminalEprosecution against those who committed irregularities. The Chief Officerof the municipality was also directed to allot houses that could be repaired,in terms of prescribed procedure, under the PMAY and report compliance.

12. After taking note of another affidavit of the Commissioner’sdated 12.06.2019, the High Court disposed of the public interest litigationsFon 27.06.2019 directing the respondents to take steps in light of the reports,and action outlined in paragraph 8 of the affidavit, “to its logical end”as expeditiously as possible. The Divisional Commissioner of Aurangabadwas also to decide whether the scheme could be completed “by takingrecourse to any other housing scheme” floated by the central or stategovernment. The court held that there was no reason for it to entertainGany criminal applications, and accordingly rejected them.

Contentions of parties

13. Mr. Shyam Divan, senior counsel for one of the appellants,argued that the operative part of the impugned judgment was pronouncedon 27.06.2019; however, the reasons were uploaded on 05.10.2020 afterH

a report was called from the Registrar (Judicial) of the High Court at itsAurangabad Bench. The time gap between the pronouncement and theoperative part of the reasons is a year and over three months. In view ofthe recent judgments of this Hon’ble Court in Balaji Baliram Mupade& Anr v. The State of Maharashtra & Ors.[4], Oriental Insurance Co.Ltd. v. Zaixhu Xie & Ors.[5]and Sudipta Chakrobarty & Anr. v.Ranaghat S.D. Hospital & Ors.[6], the impugned order requires to beset aside and the matter be remanded back to the High Court for freshconsideration, by further direction for addition of the appellants asrespondents.

14. It was argued by counsel for the appellants, that the HighCourt fell into error in failing to notice that neither were the appellantsparty respondents in the Public Interest Litigations, nor were they heard.That fact ipso facto is sufficient to set aside the impugned order since itis in violation of the principles of natural justice. Had the appellants beenheard, they would have showed the High Court that they were in noway concerned with the alleged offence. In this regard, reliance is placedon State of U.P. & Anr. v. Satya Narain Kapoor (dead) by Lrs. &Ors[7]. Counsel emphasized that the lack of opportunity to be heard, hasresulted in grave prejudice to the appellants as the respondents haveconstrued the impugned judgment as directions, requiring them to initiatecriminal proceedings, which have in fact been acted upon. It was urgedthat some of the appellants were constrained to seek anticipatory bail,which was refused, leading them to approach this court. In this regard,learned counsel were at pains to argue that the first information report(FIR) was filed on 02.12.2019 as a direct consequence of orders of thecourt made on 16.11.2019 and 21.11.2019.

15. It was argued that the petitions which led to the impugnedjudgment are an instance of misuse of public interest litigation. It washighlighted that the petitioners before the High Court were politicallymotivated individuals. In fact, not a single beneficiary from the housingscheme came forward to allege illegalities in the scheme. Therefore,filing of a criminal public interest litigation, contempt petition etc. clearlyshowed that such legal action was motivated by mala-fides and were 4 AIR 2020 SC 5758

5 (2020) SCC Online SC 1145

6 AIR 2021 SC 3344

7 (2004) 8 SCC 630

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Apolitically malicious. Therefore, it was incumbent upon the High Courtto follow the guidelines laid down by this court in the case of State ofUttaranchal v. Balwant Singh Chaufal & Ors[8].

16. It is urged that the appellants cannot be accused of committingany illegality, since clause 20 of the tender document stipulates the defectBliability period to be 60 months, for civil work. The public interest litigationswere filed after the defect liability period, which clearly pointed to ulteriormotive of the PIL petitioners. Counsel underlined the fact that neitherthe municipality, nor the government had initiated any legal or civil actionfor recovery of any amounts, from the appellants. In these circumstances,the impugned judgment, inasmuch as it gave undue credence to a reportCfurnished to the Commissioner, is in error of law.

17. The state and MHADA argue that an Audit Committee wasformed to audit the funds released for BSUP/IHSDP scheme pursuantto its inspection under the Mission. The Report of the committee wassubmitted on 19.11.2014. It stated that funds were released by MHADA/Dstate government to the municipality for the said scheme on 17.09.2014and 18.09.2014. A total of `9,29,17,000/- was made available to themunicipality through Aurangabad Board by MHADA for the IHSDPProgram. Of this fund, a payment of `1,44,00,000/- was given to theRespondent No.11 towards mobilisation advance and the entire amountEwas later recovered from the RA Bills.

18. It was highlighted that out of the fund of `9,29,17,000/- receivedfrom the central government, recovery from beneficiaries and interestaccrued aggregated to `10,25,62,318/-. The municipal council spent`9,43,33,553/- and the balance left was `82,28,765/-. In terms of theFstandards set by the central government, expenditures were to be madeas per the share of beneficiaries and share of the council. However, theentire amount was spent from the funds received from the central andstate government. It was found that for the construction of 302 tenements,`3,03,51,000/- (`1,00,500 each) was to be spent in total but actually`5,75,47,141/- was spent. The recovery from beneficiaries was to beGmade; yet recoveries were made only from 40 beneficiaries.

19. It was submitted that during spot visits (on 17 and 18 September2014) of the tenements, it was found that construction had long sincestopped. It was also found that the municipality had undertaken the H8 (2010) 3 SCC 402

construction of 302 tenements in five slum areas. The implementationperiod ended on 31.03.2015 and it was not possible to meet the deadlines.The external works were complete. The committee advised themunicipality to allot the tenements immediately because of loss due tolack of security and non-allotment damage.

20. The respondents submitted that though work had stopped forover many years, yet amounts were withdrawn from these accountsthroughout the years, leading to the inference that funds were utilizedelsewhere. Further, submitted counsel, it was found in the spot inspectionand joint measurement from a period of 02.05.2019 to 04.05.2019, thatout of 1206 tenements, 302 were complete houses and 26 wereincomplete houses (in Vasant Nagar external plaster for 8 tenementswas not done). The DPR consisted of cement concrete road, gutters,water supply, electrification and was inspected in terms of the provisionsand actual work done. The inspection was done using core cutters, digging,etc. at various places. It was found that thickness of roads was less thanquoted in the estimates and bill books. In Shivkarwadi, excess work wasdone beyond the DPR map, the payment for which was already made.The layer of seal coat was not found. Essential connections were notmade to external electrification. Water pipelines laid down in VasantNagar, Filter and Shivkarwadi colonies were not connected with theOHR, and became useless. The thickness of slabs was uneven at someplaces. It was found that a compliance report was also not made availablefor the recommendations made from time to time by M/s. SGS IndiaPrivate Ltd, Hyderabad, a third party, for inspection.

21. It was urged that valuation of work was made in the InquiryReport after necessary inspection and joint measurements. There was adiscrepancy between the amount paid to the contractor, tenement andexternal amenities wise as per the Measurement Book, and the amountcalculated as per actual site condition during the joint measurement on02.05.2019 to 04.05.2019. The observations made by the technical team,showed that the municipal council made an excess payment of`2,43,79,017/- to the contractors as compared to the work done. Out ofthis, an excess amount of `1,52,81,246/- was allegedly paid to M/s. MinarConstructions, Latur and `90,97,771/-, allegedly to Shri Sanjay SudhakarRajhans, Latur.

22. It was argued that the report stated that in terms of thegovernment resolution dated 25.06.2007 for IHSDP, the municipality A

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Aimplements the project, and is tasked with the responsibility to prepareproject reports, execute the tripartite MOA with DPR and to select thebeneficiary. The municipality also hands over possession and dischargesall responsibilities. M/s. Saya Engineers, Latur was appointed as theProject Management Consultant (PMC) and entrusted with recordingworks done in Measurement Book, verification of the day-to-day workBand giving technical advice. There was dereliction of duties by publicofficials and the PMC, by not paying the contractors for the actual workdone. The City Engineer too was responsible for verifying themeasurements made by the PMC and had to attest it, but failed to do soin this case. The Chief Officer of the municipality, was also responsibleCas he failed to record his opinion before clearing the bills. Theaccountant’s signature was not found on the bills in the MeasurementBooks along with the necessary endorsement. The committee suggestedthat completed houses be allotted to the original eligible beneficiariesunder the PMAY scheme, houses which cannot be repaired be demolished, and a new DPR under the PMAY scheme be prepared forDconstruction of houses.

23. It is urged that in the meeting held on 22.04.2019 (comprisingof the Collector Osmanabad, Chief Officer MHADA, Chief OfficerMunicipal Council Naldurg and others) several actions were proposed,such as technical valuation of the work done to ascertain if there wereEany financial irregularities; determining amount to be recovered fromthe responsible person(s) and action to be taken against the person(s)found responsible for irregularities; among others. In light of the reportdated 03.06.2019 from the technical team, the Collector Osmanabaddirected the Chief Officer, Municipal Council, Naldurg, to recover the Fexcess amount paid to the contractors, and blacklist them fromGovernment work, to initiate criminal prosecution against the person(s)who had committed the irregularities, and lastly allot the repairable housesas per PMAY. A compliance report was to be submitted. The DivisionalCommissioner, Aurangabad by his letter dated 11.06.2019 directed the Collector to take steps for repairing houses which were in repairableGcondition to be allotted to the eligible beneficiaries under PMAY and todemolish houses which are not in repairable condition. A new DPR planwas to be prepared under PMAY scheme for construction of housesand their allotment to eligible persons. Counsel submitted that these factsare a matter of record, and cannot be disputed. In light of these materials,Hthe authorities lodged the FIR, which led to initiation of criminal proceedings. No doubt, it would appear that those proceedings wereprompted by the judgment, and the initiation of contempt proceedings.Yet, the question of quashing the FIR does not arise, because it is basedon allegations of serious illegalities, that cannot be overlooked.

Analysis and conclusions

24. The appellants who have approached this court, were allinvolved as persons or authorized individuals, acting on behalf of entitiesthat were awarded the contract of construction and completion of thehousing units, pursuant to the scheme, which was to be implementedwithin 60 months. The spot inspection report dated 24.05.2019, allegesthat the appellants had not performed their task. In the case of the projectconsultant - who is one of the appellants - it was of not recording theworks done in the Measurement Book properly, and causing excesspayment to the contractors. PIL No. 70/2014 was filed against the projectcontractor, officers and office bearers of Municipal Council. During thependency of that petition, criminal PIL No. 6/2018 was filed by the twoMunicipal Councillors against the contractor, officers and office bearers.The High Court disposed of the two public interest litigations and directedthe Divisional Commissioner, Aurangabad to take steps in the backdropof various reports submitted to him, as referred to in the Affidavit-in-Reply dated 12.06.2019 filed by him.

25. The first grievance of the appellants is that the reasoning forthe impugned judgment was given and published long after its operativeportion was pronounced. The operative portion of the judgment waspronounced on 27.06.2019. The reasons were published on 05.10.2020.It is clear that the High Court’s order, against which an aggrieved litiganthas a right to approach this court, under special leave jurisdiction, shouldcontain reasons, without which it would be well-nigh impossible toexercise that right of seeking special leave, and in many cases, urgedad-interim and, possibly, ex-parte relief. The appellants’ reliance onBalaji Baliram Mupade & Anr (supra), Oriental Insurance Co. Ltd.(supra) and Sudipta Chakrobarty (supra) and the other two judgments,cited earlier, is warranted. In this case, the High Court incontestablyshould have furnished the reasons for the operative portion of its order.To that extent, the appellants’ grievance is justified. This court is howeverreluctant to hold – having regard to the circumstances and the facts onthe record - that the absence of reasons struck at the legitimacy of theimpugned judgment. It caused prejudice no doubt, to the extent that the A

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Aappellants were unable to furnish grounds on which their special leavepetitions were based. However, that prejudice stood off-set with theinterim orders of this court, which recognized the piquancy of thesituation, and directed stay of further action against the appellants. Inview of these special circumstances, the court is of the opinion that theimpugned order should not be set aside. However, the High Court’sBconduct in not furnishing reasons, either at the time of pronouncementof the operative part of the judgment, or before the commencement ofthe next working day (of the court) is strongly deprecated.

26. The appellant’s next challenge to the impugned judgment isthe ground that the public interest litigation was motivated, and that theyCwere not parties. It is urged that consequently the High Court should nothave issued the impugned directions. Reliance is placed on decisions ofthis court, to the effect that so called public interest litigations, motivatedby malice and personal ill will, should not be entertained.

27. There is no doubt, that public interest litigation is meant to beDentertained, for bona fide causes, and not to aid either misguidedindividuals in their quest for publicity, or for wreaking vendetta on publicofficials or institutions. This court had (undoubtedly before the era ofpublic interest litigation) emphasized the need to keep out “busybodies”who “have no interest in matters of public interest” in Jasbhai DesaiEv. Roshan Kumar[9]and stated, about such individuals, that “They masquerade as crusaders for justice. They pretend toact in the name of Pro Bono Publico, though they have nointerest of the public or even of their own to protect. Theyindulge in the pastime of meddling with the judicial processFeither by force of habit or from improper motives. Often, theyare actuated by a desire to win notoriety or cheap popularity;while the ulterior intent of some applicants in this category,may be no more than spooking the wheels of administration.The High Court should do well to reject the applications ofsuch busybodies at the threshold.”G28. In Environment and Consumer Protection Foundation vUnion of India & Ors.[10] this court had underlined the purpose of publicinterest proceedings, and observed as follows:

9 (1976) 3 SCR 58H10 (2017) 16 SCC 780.

“29. Why are the Action Plan and these directions necessary?We seem to be forgetting the power of Public Interest Litigationand therefore need to remind ourselves, from time to time, ofits efficacy in providing social justice. Many years ago, thisCourt noted in People’s Union for Democratic Rights v Unionof India (1982) 3 SCC 235 that :(SCC p. 240, para 2):

“2...Public interest litigation is brought before the court notfor the purpose of enforcing the right of one individual againstanother as happens in the case of ordinary litigation, but it isintended to promote and vindicate public interest whichdemands that violations of constitutional or legal rights oflarge numbers of people who are poor, ignorant or in asocially or economically disadvantaged position should notgo unnoticed and unredressed. That would be destructive ofthe rule of law which forms one of the essential elements ofpublic interest in any democratic form of Government.”

A little later in the judgment, it was said: (SCC pp.242-43,para 3)

“3....Millions of persons belonging to the deprived andvulnerable sections of humanity are looking to the courts forimproving their life conditions and making basic human rightsmeaningful for them. They have been crying for justice buttheir cries have so far been in the wilderness. They have beensuffering injustice silently with the patience of a rock, withoutthe strength even to shed any tears.”

30. The advantage of public interest litigation is not only toempower the economically weaker sections of society but alsoto empower those suffering from social disabilities that maynot necessarily of their making. The widows of Vrindavan(and indeed in other ashrams) quite clearly fall in this categoryof a socially disadvantaged class of our society.

31. Placing empowerment in perspective, this Court noted inState of Uttaranchal v Balwant Singh Chaufal (2010) 3 SCC402 that (at SCC p. 427, para 43) the first phase of publicinterest litigation concerned itself with primarily with theprotection of the fundamental rights under Article 21 of theConstitution of “the marginalized groups and sections of the AB

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Asociety who because of extreme poverty, illiteracy andignorance cannot approach this Court or the High Courts.”We may add - the socially underprivileged groups. These arethe people who have no real access to justice and in thatsense are voiceless, and these are the people who need to beempowered and whose cause needs to be championed by thoseBwho advocate social justice for the disadvantaged.

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32. This recognition formed the basis of the decision of thisCourt in Delhi Jal Board v National Campaign for Dignity &Rights of Sewerage & Allied Workers (2011) 8 SCC 568wherein providing succour to the deprived sections of societyCwas recognized as a “constitutional duty” of this Court.Referring to several judgments delivered by this Court, it wasobserved: (SCC p. 590, para 31)

“31. These judgments are a complete answer to the appellant’sobjection to the maintainability of the writ petition filed byDRespondent 1.What the High Court has done by entertainingthe writ petition and issuing directions for protection of thepersons employed to do work relating to sewage operationsis part of its obligation to do justice to the disadvantagedand poor sections of the society. We may add that the superiorEcourts will be failing in their constitutional duty if they declineto entertain petitions filed by genuine social groups, NGOsand social workers for espousing the cause of those who aredeprived of the basic rights available to every human being,what to say of fundamental rights guaranteed under theConstitution. It is the duty of the judicial constituent of theFState like its political and executive constituents to protectthe rights of every citizen and every individual and ensurethat everyone is able to live with dignity.”

29. In the present case, the appellants urge this court to interferewith the impugned judgment on the ground that the writ petitioners whoGapproached the High Court/at whose behest the public interestproceedings were initiated, and the impugned directions issued, hadpersonal motive. It was urged that the said writ petitioners were councillors,and politically motivated. In the opinion of this court, that fact is insufficientto allow the appeals. The cause espoused by the said individuals wasHundoubtedly 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 athousand housing units were to be constructed and allotted to thebeneficiaries. In view of the inquiries and the reports, conducted andprepared during the proceedings, there could have been no manner ofdoubt that the initiation of public interest proceedings, were justified,having regard to the contents of such reports. In the present case, evenif the public interest litigants’ motives were ambiguous, or not immediatelybona fide, that could not have led to dismissal of the writ petition, beforethe High Court. The objection as to lack of standing of the public interestlitigants, therefore, is without merit.

30. The record thus discloses that two PILs had been filedcontaining somewhat similar allegations, i.e. the failure and neglect onthe part of the municipal authorities of Naldurg in regard to completionof the scheme. The public interest litigants had alleged the uttermismanagement of IHSDP in terms of which as many as 1.05 lakhdwelling units were to be constructed and handed over to the eligibleindividuals. As noted previously, the scheme contemplated a substantialfunding by the central government and the rest of the funding to beborne by the allottees. As against the targeted 1206 housing units to beconstructed, 737 beneficiaries belonged to the reserved category andthe rest to the general category. The cost of construction was estimatedto be `16,08,91,396/- (Rupees Sixteen Crores Eight Lakhs Ninety OneThousand Three Hundred Ninety Six only). The total cost was`20,69,04,514/- (Rupees Twenty Crores Sixty Nine Lakhs Four ThousandFive Hundred Fourteen only). Eventually, the material in the form ofinspection reports and affidavits of MHADA as well as the DivisionalCommissioner revealed that only 302 housing units were constructed indifferent localities in Naldurg, of which 202 could be used and 100 werein an unusable and dilapidated condition. The proceedings before theHigh Court led to the inspection as well as the verification of accountsas a consequence of which the affidavits filed on behalf of the authoritiesrevealed that excess payments of `1,52,81,846/- (Rupees One CroreFifty Two Lakhs Eighty One Thousand Eight Hundred Forty Six only)and `90,97,771/- (Rupees Ninety Lakhs Ninety Seven Thousand SevenHundred Seventy One only) were made.

31. The main arguments of the appellants are that criminalproceedings have been initiated against them even though they were not AB

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Aheard in the public interest proceedings, and that being adverse to themthe judgment is vitiated on account of their non-participation. A grievanceis also made out that of the dwelling units constructed by the contractors,no deficiency was pointed out by the public agency, i.e. the municipalityand that even civil action stood precluded because the contractual liabilityperiod had lapsed.B

32. The impugned judgment disposed of both the PILs. Essentially,the first direction issued by the High Court, i.e. to the DivisionalCommissioner to take steps referred to in affidavit in reply in generaland para 8 in particular “to its logical end as expeditiously as possible”appears to be the rub in this case inasmuch as the appellants grouse isCthat it has led to lodging of an FIR. The affidavit recounted the objectionsof the IHSDP scheme and indicated the state of affairs with respect tothe completed dwelling units, i.e. 302 houses. The affidavit cited thereport dated 20.04.2019 and the steps recommended in the meeting ofthe Committee on 22.04.2019. The Divisional Commissioner further statedDas follows:

“7. I say and submit that after the receipt of the report fromthe technical committee constituted by the deponent, theCollector Osmanabad has submitted her report dated 03/06/2019, wherein she stated that direction has been issued to theEChief Officer of the Municipal Council Naldurg by her letterdated 03/06/2019.

I)To recover the excess amount paid to the contractorsfrom the concern contractors and further directed toblack list that contractors for Govt. work.

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II)Further directions has been issued to the Chief OfficerMunicipal Council Naldurg, to initiate action of criminalprosecution against the persons who have committedthe irregularities.

III)Further direction has been issued to the effect that theGhouses which are in repairable condition shall beallotted as per the procedure laid down under the PMAYand the report of the compliance shall be submitted.The copy of the report dated 03/06/2019 submitted bythe Collector Osmanabad is annexed herewith andmarked as EXHIBIT “R-5”.H

8. I say and submit that in the light of above facts andcircumstances the deponent vide its letter dated 11/06/2019directed the Collector Osmanabad to take steps for repairingthe houses which are in repairable condition and same shouldbe allotted to the eligible persons under PMAY scheme. Thathouses which are not in repairable condition, by demolishingthe same new DPR plan should be prepared under the PMAYscheme and the said houses should be allotted to the eligibleperson under the said scheme. Further directions has alsobeen issued for lodging criminal prosecution against thepersons responsible for the irregularities in implementationof the scheme. The copy of the letter dated 11/06/2019 isannexed herewith and marked as EXHIBIT “R-6”. Hence thisaffidavit.”

33. It is quite evident that the High Court did not by itself directinitiation of investigation nor did it direct registration of an FIR. TheDivisional Commissioner had deposed those instructions had been givento take such steps. The High Court, therefore, ordered that those stepsbe taken to their logical end.

34. In the opinion of the court, whilst the reasoning for the impugnedjudgment was undoubtedly published after a long and unexplained delay,the effect of its operative directions were not to per se prosecute. Itmerely required the Divisional Commissioner to take the necessary steps,which were not limited to the launching of criminal prosecution but alsotaking steps towards reconstruction of the flats for the intendedbeneficiaries. It is further a matter of record that when the FIR waslodged in December 2019, all the present appellants – all of whom werenot before the High Court - were named as accused. Another importantfact which requires to be noticed is that several of these appellants hadapproached this Court on the ground that their applications for anticipatorybail had been rejected; they filed special leave petitions along withapplications to file for special leave since they were not parties in theHigh Court. Those proceedings were entertained and this court hadgranted interim orders protecting them from coercive action.

35. The material on record before the High Court in the form ofinspection report dated 20.04.2019 and further materials including theDivisional Commissioner’s affidavit, showed irregularities of a severenature. The constructions, according to the reports, were sub-standard AB

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A– in respect of 100 such houses, so severe that the units were unusable.The main objective of providing housing to 1206 eligible and deservingfamilies remains unfulfilled despite expenditure of substantial amounts.In the circumstances, the argument of the appellants that they ought tohave been heard even before action was initiated, does not commend tothis Court; it is not sound. The five Judge Bench decision of this court inBLalita Kumari v. Govt. of UP[11]is clear in that if there are allegationswith respect to commission of cognizable offences, brought to the noticeof the police authorities, ordinarily an FIR has to be lodged. The Courtheld that:

“119. Therefore, in view of various counterclaims regardingCregistration or non-registration, what is necessary is only thatthe information given to the police must disclose the commissionof a cognizable offence. In such a situation, registration ofan FIR is mandatory. However, if no cognizable offence ismade out in the information given, then the FIR need not beDregistered immediately and perhaps the police can conduct asort of preliminary verification or inquiry for the limitedpurpose of ascertaining as to whether a cognizable offencehas been committed. But, if the information given clearlymentions the commission of a cognizable offence, there is noother option but to register an FIR forthwith. OtherEconsiderations are not relevant at the stage of registration ofFIR, such as, whether the information is falsely given, whetherthe information is genuine, whether the information is credible,etc. These are the issues that have to be verified during theinvestigation of the FIR. At the stage of registration of FIR,Fwhat is to be seen is merely whether the information given exfacie discloses the commission of a cognizable offence. If,after investigation, the information given is found to be false,there is always an option to prosecute the complainant forfiling a false FIR.”

G36. In the present case, there were materials suggesting seriousirregularities. The government allowed the Divisional Commissioner toaffirm in the affidavit filed by him on 12.06.2019 that criminal proceedingswould be initiated. In such circumstances, the observations of the HighCourt to take the matter to the logical end have to be, therefore, construed H11 (2014) 2 SCC 1

in that context. Whether the allegations are true or whether thesubmissions on behalf of the petitioners justified their conduct or omissionis something upon which the High Court could not, and in the opinion ofthis court correctly, did not comment. As far as the FIR itself wasconcerned, the police had no choice given the imperative nature of thelaw declared in Lalita Kumari (supra) where a preliminary enquiryordinarily is to be eschewed whenever cognizable offences are reported.

37. In light of the above findings, this court is of the opinion thatthe appeals have to fail. However, it is made clear that the observationsmade by the High Court or the observations of this court, in the courseof this judgment shall not be construed as precluding any argument ordefences, the merits of any argument or defence that may be taken bythe appellants in the course of the criminal proceedings. The appeals areaccordingly dismissed but without any order on costs.

Devika Gujral

Appeals dismissed.

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