Shaikh Ansar Ahmad Md. Husain vs The State of Maharashtra & Ors.

Public interest litigation: Housing scheme – Allegations of failure and neglect on the part of the municipal authorities in regard to completion of the scheme – In the criminal public interest litigation, the respondents (PIL petitioners) sought directions to the Union of India, the State of Maharashtra, the Maharashtra Housing and Urban Development Authority (MHADA) and state officials to initiate criminal proceedings against the responsible officers and office bearers of Municipal Council, Naldurg and concerned contractors for misappropriation of government funds in implementation of the housing scheme in the municipality – The PIL petitioners had alleged the utter mismanagement in terms of which as many as 1.05 lakh dwelling units were to be constructed and handed over to the eligible individuals – The scheme contemplated a substantial funding by the central government and the rest of the funding to be borne by the allottees – As against the targeted 1206 housing units to be constructed, 737 beneficiaries belonged to the reserved category and the rest to the general category – Inspection reports and affidavits of MHADA as well as the Divisional Commissioner revealed that only 302 housing units were constructed in different localities in Naldurg, of which 202 could be used and

100 were in an unusable and dilapidated condition – The affidavits filed on behalf of authorities revealed that excess payments of `1,52,81,846/- and `90,97,771/- were made – After taking note of affidavit of the Commissioner, High Court disposed of PILs directing the respondents to take steps in light of the reports, and action outlined in the affidavit, “to its logical end” as expeditiously as possible – In the instant appeal, the main argument of the appellant was that criminal proceedings were initiated against them even though they were not heard in the public interest proceedings, and that being adverse to them the judgment was vitiated on account of their non-participation – Held: High Court had not by itself directed initiation of investigation nor did it direct registration of an FIR – High Court had directed respondents to take steps in light of their reports, and action outlined in the affidavit, “to its logical end” – The material on record before the High Court in the form of inspection report and further materials including the Divisional Commissioner’s affidavit, showed irregularities of a severe nature – The constructions, according to the reports, were sub-standard in respect of 100 such houses, so severe that the units were unusable – The main objective of providing housing to 1206 eligible and deserving families remained unfulfilled despite expenditure of substantial amounts – In the circumstances, the argument of the appellants that they ought to have been heard even before action was initiated, does not commend to this Court; it is not sound – There were materials suggesting serious irregularities – The government allowed the Divisional Commissioner to affirm in the affidavit filed by him that criminal proceedings would be initiated – In such circumstances, the observations of the High Court to take the matter to the logical end have to be, therefore, construed in that context – Whether the allegations are true or whether the submissions on behalf of the petitioners justified their conduct or omission is something upon which the High Court could not and correctly did not comment – As far as the FIR itself was concerned, the police had no choice given the imperative nature of the law declared in Lalita Kumari where a preliminary enquiry ordinarily is to be eschewed whenever cognizable offences are reported – Thus, the impugned order not interfered with.

Dismissing the appeals, the Court

HELD: 1. The first grievance of the appellants is that the reasoning for the impugned judgment was given and published long after its operative portion was pronounced. The operative portion of the judgment was pronounced 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 litigant has a right to approach this court, under special leave jurisdiction, should contain reasons, without which it would be well-nigh impossible to exercise that right of seeking special leave, and in many cases, urged ad-interim and, possibly, ex-parte relief. In this case, the High Court should have furnished the reasons for the operative portion of its order. To that extent, the appellants’ grievance is justified. This court is however reluctant to hold – having regard to the circumstances and the facts on the record - that the absence of reasons struck at the legitimacy of the impugned judgment. It caused prejudice no doubt, to the extent that the appellants were unable to furnish grounds on which their special leave petitions were based. However, that prejudice stood off-set with the interim orders of this court, which recognized the piquancy of the situation, and directed stay of further action against the appellants. In view of these special circumstances, the impugned order should not be set aside. However, the High Court’s conduct in not furnishing reasons, either at the time of pronouncement of the operative part of the judgment, or before the commencement of the next working day (of the court) is strongly deprecated. [Para 25][827-E-H; 828-A-B]

2.1 The appellant’s next challenge to the impugned judgment is the ground that the public interest litigation was motivated, and that they were not parties. There is no doubt, that public interest litigation 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. It was urged that the said writ petitioners were councillors, and politically motivated. That fact is insufficient to allow the appeals. The cause espoused by the said individuals was undoubtedly one of public interest, because it concerned housing for the economically disadvantaged sections of society, in such great numbers. The scheme was meant to benefit thousands of persons, and over a thousand housing units were to be constructed and allotted to the beneficiaries. In view of the inquiries and the reports, conducted and prepared during the proceedings, there could have been no manner of doubt that the initiation of public interest proceedings, were justified, having regard to the contents of such reports. In the present case, even if the public interest litigants’ motives were ambiguous, or not immediately bona fide, that could not have led to dismissal of the writ petition, before the High Court. The objection as to lack of standing 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 v Unon of India & Ors. (2017) 16 SCC 780 – relied on.

2.2 The record thus discloses that two PILs had been filed containing somewhat similar allegations, i.e. the failure and neglect on the part of the municipal authorities of Naldurg in regard to completion of the scheme. The public interest litigants had alleged the utter mismanagement of IHSDP in terms of which as many as 1.05 lakh dwelling units were to be constructed and handed over to the eligible individuals. The scheme contemplated a substantial funding by the central government and the rest of the funding to be borne by the allottees. As against the targeted 1206 housing units to be constructed, 737 beneficiaries belonged to 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 in the form of inspection reports and affidavits of MHADA as well as the Divisional Commissioner revealed that only 302 housing units were constructed in different localities in Naldurg, of which

202 could be used and 100 were in an unusable and dilapidated condition. The proceedings before the High Court led to the inspection as well as the verification of accounts as a consequence of which the affidavits filed on behalf of the authorities revealed that excess payments of `1,52,81,846/- and `90,97,771/- were made. [Para 30][831-C-G]

3. The main arguments of the appellants are that criminal proceedings have been initiated against them even though they were not heard in the public interest proceedings, and that being adverse to them the judgment is vitiated on account of their nonparticipation. A grievance is also made out that of the dwelling units constructed by the contractors, no deficiency was pointed out by the public agency, i.e. the municipality and that even civil action stood precluded because the contractual liability period had lapsed. The impugned judgment disposed of both the PILs. Essentially, the first direction issued by the High Court, i.e. to the Divisional Commissioner to take steps referred to in affidavit in reply in general and 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 is that it has led to lodging of an FIR. The affidavit recounted the objections of the IHSDP scheme and indicated the state of affairs with respect to the completed dwelling units, i.e. 302 houses. The affidavit cited the report dated 20.04.2019 and the steps recommended in the meeting of the Committee on 22.04.2019. [Paras 31, 32] [831-G-H; 832-A-D]

4.1 It is quite evident that the High Court did not by itself direct initiation of investigation nor did it direct registration of an FIR. The Divisional Commissioner had deposed those instructions 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 undoubtedly published after a long and unexplained delay, the effect of its operative directions were not to per se prosecute. It merely required the Divisional Commissioner to take the necessary steps, which were not limited to the launching of criminal prosecution but also taking steps towards reconstruction of the flats for the intended beneficiaries. It is further a matter of record that when the FIR was lodged in December 2019, all the present appellants – all of whom were not before the High Court - were named as accused. Another important fact which requires to be noticed is that several of these appellants had approached this Court on the ground that their applications for anticipatory bail had been rejected; they filed special leave petitions along with applications to file for special leave since they were not parties in the High Court. Those proceedings were entertained and this court had granted interim orders protecting them from coercive action. [Paras 33, 34][833-C-G]

4.2 The material on record before the High Court in the form of inspection report dated 20.04.2019 and further materials including the Divisional Commissioner’s affidavit, showed irregularities of a severe nature. The constructions, according to the reports, were sub-standard – in respect of 100 such houses, so severe that the units were unusable. The main objective of providing housing to 1206 eligible and deserving families remains unfulfilled despite expenditure of substantial amounts. In the circumstances, the argument of the appellants that they ought to have been heard even before action was initiated, does not commend to this Court; it is not sound. [Para 35][833-G-H; 834-A-B]

5. In the present case, there were materials suggesting serious irregularities. The government allowed the Divisional Commissioner to affirm in the affidavit filed by him on 12.06.2019 that criminal proceedings would be initiated. In such circumstances, the observations of the High Court to take the matter to the logical end have to be, therefore, construed in that context. Whether the allegations are true or whether the submissions on behalf of the petitioners justified their conduct or omission is something upon which the High Court could not, and in the opinion of this court correctly, did not comment. As far as the FIR itself was concerned, the police had no choice given the imperative nature of the law declared in Lalita Kumari where a preliminary enquiry ordinarily is to be eschewed whenever cognizable 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 of

Maharashtra & Ors. AIR 2020 SC 5758 Oriental

Insurance Co. Ltd. v. Zaixhu Xie & Ors. (2020) SCC Online 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) by Lrs. & Ors (2004) 8 SCC 630; State of Uttaranchal v. Balwant Singh Chaufal & Ors (2010) 3 SCC 402 : [2010] 1 SCR 678 – referred to.