WP(PIL)/15/2014 of Sonam Tshering Bhutia & Ors. Vs State Of Sikkim and Ors. on 2 September 2014

IN THE HIGH COURT OF SIKKIM

CIVIL JURISDICTION

WP (PIL) No. 15/2014

Sonam Tshering Bhutia & Ors. vs. State of Sikkim & Ors.

BEFORE HON’BLE THE CHIEF JUSTICE MR. JUSTICE N.K. JAIN HON’BLE MR. JUSTICE S. K. SINHA, JUDGE

05. 02.09.14 Present:

(Jain, CJ)

Ms. Gita Bista, Advocate for the Petitioners.

Mr. Soumik Dutta, Petitioner No.4 in person.

M/s. J.B. Pradhan, Addl. Advocate General, Karma Thinlay, Sr. Govt. Advocate with S.K. Chettri and Pollin Rai, Asstt. Govt. Advocates for respondents No. 1.

…

Heard learned counsel for the parties and Petitioner No. 4, who is present in person.

2. The petitioners No. 1 to 4 have filed this writ petition, alleged to be in public interest with the following prayers: - “a. Issue an appropriate writ prohibiting further allocation and disbursement of funds to the State of Sikkim under the SPA and the NDRF as well as the SDRF and CMRF in respect of the earthquake of 2011. a. Issue an appropriate writ prohibiting further allocation and disbursement of funds to the State of Sikkim under the SPA and the NDRF as well as the SDRF and CMRF in respect of the earthquake of 2011.

b. Issue an appropriate writ to direct a thorough investigation by an SIT or a court-monitored investigation by the CBI into the entire allocation of funds and application of funds to and by the State of Sikkim under SPA and the use/application of the aforementioned funds by the Respondent 1 State and its instrumentalities inclusive of the Respondents 2 and 3 in respect of funds under the SPA, NDRF, SDRF as well as funds from the CMRF as well as the role played by Respondent banks and other financial institutions; investigation by an SIT or a court-monitored investigation by the CBI into the entire allocation of funds and application of funds to and by the State of Sikkim under SPA and the use/application of the aforementioned funds by the Respondent 1 State and its instrumentalities inclusive of the Respondents 2 and 3 in respect of funds under the SPA, NDRF, SDRF as well as funds from the CMRF as well as the role played by Respondent banks and other financial institutions;

c. Issue an ad-interim stay on disbursement of any further funds by the Union of India under the SPA and the NDRF to the State of Sikkim and its instrumentalities relating to the Earthquake of 2011 during the pendency of the Writ Petition; further funds by the Union of India under the SPA and the NDRF to the State of Sikkim and its instrumentalities relating to the Earthquake of 2011 during the pendency of the Writ Petition;

d. Issue an ad-interim Stay on disbursement and further application of any funds by the State of Sikkim and its instrumentalities from the SPA, NDRF and SDRF during the pendency of the Writ Petition; further application of any funds by the State of Sikkim and its instrumentalities from the SPA, NDRF and SDRF during the pendency of the Writ Petition;

e. Issue an ad-interim stay disbursement and further application of any funds by the State of Sikkim and its instrumentalities from the CMRF during the pendency of the Writ Petition; further application of any funds by the State of Sikkim and its instrumentalities from the CMRF during the pendency of the Writ Petition;

f. Ad-interim order in term of prayer c. d. and e. as above; above; g. issue or pass any writ, direction or order and any other relief(s) which this Hon’ble Court may deem fit and proper in the facts of the case and in the interest of probity and rule of law;”other relief(s) which this Hon’ble Court may deem fit and proper in the facts of the case and in the interest of probity and rule of law;”

3. Respondent No. 1 has filed its counter affidavit.

4. The matter was listed on 30.07.2014. However, it was adjourned for 01.09.2014. In the meantime, learned counsel for the petitioners was also directed to seek instructions from the petitioners about approaching the Lokayukta in the facts and circumstances of the present case.

5. Petitioner No. 4, Mr. Soumik Dutta, filed an Application, i.e. CMA No. 261/2014, on 29.08.2014, praying therein that he may be permitted to withdraw from the writ petition, to pursue the remedy before the Lokayukta for the State of Sikkim.

6. The matter was listed on 01.09.2014. Petitioner No. 4 was present in person to press his Application. Learned counsel for petitioners submitted that he may be granted one day’s time to seek instructions in the matter, therefore, the case was adjourned for today.

7. Petitioner No. 4, Mr. Soumik Dutta, submitted that he has filed CMA No. 261/2014 seeking permission to allow him to withdraw from the writ petition, so as to pursue the matter before the Lokayukta of State of Sikkim.

8. Learned Addl. Advocate General submitted that he has no objection in it.

9. In view of above, we allow the CMA No. 261/2014 and permit the petitioner No. 4 to withdraw from the writ petition and to pursue the remedy before the Lokayukta of State of Sikkim.

10. So far as petitioners No. 1, 2 and 3 are concerned, learned counsel for the petitioners submitted that although an alternative remedy before the Lokayukta is available, but the same is not an efficacious remedy, therefore, petitioners No. 1 to 3 are not willing to pursue the matter before Lokayukta, therefore, an appropriate order may be passed in the matter.

11. Learned Additional Advocate General raised a preliminary objection that the main grievance of the petitioners in the writ petition is about holding an inquiry in respect of so called allegations of misappropriation of funds relating to the earthquake of 2011. He submitted that the State of Sikkim has enacted the “Sikkim Lokayukta Act, 2014” (Act No. 6 of 2014) (for short, ‘the Act of 2014’), which has been published in Sikkim Government Gazette Notification dated 27.02.2014 and from the said date the Act of 2014 has come into force. He submitted that the Chairperson of the Lokayukta has also been appointed, who has taken over the charge of the post on 03.03.2014. The Administrative Member and Judicial Member have also been appointed. The learned Addl. Advocate General submitted that the allegations and prayers made in the writ petition can be examined by Lokayukta, who is provided with all the infrastructures and mechanism. He, therefore, submitted that the writ petitioners have an alternative efficacious statutory remedy, therefore, the writ petition be dismissed with liberty to petitioners to approach the Lokayukta in the matter.

12. We have considered the submissions of learned counsel for the parties. Learned counsel for the petitioners took time to seek instructions in the matter. Petitioner No. 4 has filed an Application, i.e. CMA No. 261/2014, to permit him to withdraw from the writ petition and to pursue the remedy with the Lokayukta of the State of Sikkim. We have already allowed this Application and permitted the petitioner No. 4 to withdraw from the writ petition and to seek alternative remedy available before the Lokayukta in the State of Sikkim.

13. We have also considered the submission of learned counsel for the petitioners No. 1, 2 and 3 and learned Addl. Advocate General appearing on behalf of respondent

Conclusion

No. 1. We have examined the provisions of the Act of 2014. Sections 13 and 45 of the Act of 2014 are relevant. Therefore, the same are reproduced as under:- “13. (1) Subject to the other provisions of this Act, the Lokaukta shall enquire or cause an inquiry to be conducted as per the procedure into any matter involving, or arising from, or connected with, any allegation of corruption made in a complaint in respect of the following, namely: - (a) any person who is or has been a Chief Minister; (b) any other person who is or has been a Minister of the State; the State;

(c) any person who is or has been a Member of the Sikkim Legislative Assembly; Sikkim Legislative Assembly; (d) any person who is Chairperson or a member by whatever name called, of a Panchayat or a Municipality as respectively provided in Articles 243-B and 243-Q of the Constitution of India; whatever name called, of a Panchayat or a Municipality as respectively provided in Articles 243-B and 243-Q of the Constitution of India; (e) any officer or employee of the State, referred to in sub-clauses (i) and (ii) of clause (c) of section 2 of the Prevention of Corruption Act, 1988 when serving or who has served, in connection with the affairs of the State; in sub-clauses (i) and (ii) of clause (c) of section 2 of the Prevention of Corruption Act, 1988 when serving or who has served, in connection with the affairs of the State; (f) any officer or employee referred to in clause (e) or holding equivalent post in any Body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by any Act of Parliament or of a State Legislature which is wholly or partly financed by the Government or controlled by it; or holding equivalent post in any Body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by any Act of Parliament or of a State Legislature which is wholly or partly financed by the Government or controlled by it; (g) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not), by whatever name called, wholly or partly financed or aided by the Government and the annual income of which exceeds such amount as the Government may, by notification, specify; manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not), by whatever name called, wholly or partly financed or aided by the Government and the annual income of which exceeds such amount as the Government may, by notification, specify;

(h) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not) in receipt of any donation from the public and the annual income of which exceeds such amount as the Government may, by notification, specify or from any foreign source under the Foreign Contribution (Regulation) Act, 2010 in excess of ten lakh rupees in a year or such higher amount as the Central Government may, by notification, specify: manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not) in receipt of any donation from the public and the annual income of which exceeds such amount as the Government may, by notification, specify or from any foreign source under the Foreign Contribution (Regulation) Act, 2010 in excess of ten lakh rupees in a year or such higher amount as the Central Government may, by notification, specify:

Provided that any person referred to in this clause shall be deemed to be a public servant under clause (c) of section 2 of the Prevention of Corruption Act, 1988 and the provisions of that Act shall apply accordingly.

(2) Notwithstanding anything contained in sub-section (1), the Lokayukta shall not inquire into any matter involving or arising from, or connected with, any such allegation of corruption against any Member of the Sikkim Legislative Assembly in respect of anything said or a vote given by him in the said Assembly or any committee thereof covered under the provisions contained in clause (2) of Article 194 of the Constitution of India.

(3) The Lokayukta may inquire into any act or conduct of any person other than those referred to in sub-section (1), if such person is involved in the act of bribe giving or bribe taking or abetting the same or in conspiracy relating to any allegation of corruption under the Prevention of Corruption Act, 1988 against a person referred to in sub-section (1):

Provided that no action under this section shall be taken in case of a person serving in connection with the affairs of the Union, without the consent of the Central Government.

(4) No cognizance of a complaint shall be taken if it discloses that the offence as alleged was committed by a public servant while he was holding the office if the allegation of offence relates to a period which is more than five years old from the date of the complaint.

45. On the coming into force of this Act and the Lokayukta being constituted any allegation of corruption pending inquiry before the Vigilance Wing of the State Government or any other body or authority or Commission of Inquiry, constituted under Commission of Inquiry Act, 1952, shall stand transferred to the Lokayukta constituted under this Act to be dealt with in accordance with the provisions of this Act. ”

14. The powers of Lokayukta have been given in Chapter VIII. After considering the various provisions of the Act of 2014, we are of the view that the alternative remedy available to the petitioners before Lokayukta is an efficacious remedy. The Act of 2014 came into force in the State of Sikkim with effect from 27.02.2014. The Chairperson of the Lokayukta has already been appointed. The Administrative Member and Judicial Member have also been appointed and it is functioning in the State of Sikkim.

The scope of holding an inquiry in alleged corruption cases by Lokayukta is wider in nature. The Lokayukta has been provided with all infrastructures and mechanism to deal with complaints/matters filed before it. The allegations alleged in the matter may require recording of evidence etc., which is easily possible before the Lokayukta.

15. After considering all the facts and circumstances and the submissions of learned counsel for the parties, we are of the view that petitioners have an alternative efficacious statutory remedy in the matter, the petitioner No. 4 has already filed CMA No. 261/2014 to permit him to pursue the remedy/matter before the Lokayukta of State of Sikkim, which we have allowed.

16. In these circumstances, we are not inclined to continue with the present writ petition anymore and the same is accordingly dismissed with liberty to petitioners to avail the alternative efficacious remedy available to them under the provisions of the Act of 2014, in accordance with law.

Judge Chief Justice 02.09.2014 02.09.2014