9911796707
TMI Blog2020 (8) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts as are essential for this Court to appreciate whether the Lokayukta has followed the prescribed procedure to add the parties suo motu. 4. There came a complaint 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 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. 5. 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. Besides, it has found that some panchayat members helped the Sarpanch, by passing a resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bust Hotels (P) Ltd., v. E.I.H. Ltd.[ (2010) 6 CTC 192], (5) Mumbai International Airport Pvt., Ltd. v. Regency Convention Centre & Hotels Pvt., Ltd.[ (2010) 7 SCC 417], (6) Ashwani Kumar v. Sanjay Kumar[MANU/HP/0194/2019], (7) Ch. Rama Rao v. The Lokayukta[AIR 1996 SC 2450], (8) P. Arumugha Gounder v. R. Adhinarayanan[(1963) 76 LW 796], and (9) Bhimavarapu Venkateswara Reddi v. Vanga Rami Reddi[(1971) 2 AP LJ 55]. Respondents: 11. Shri Nigel Da Costa Frias, the learned counsel for the respondents no.4 & 5, who are the original complainants, has joined the issue on all points the petitioners' counsel has advanced. He has 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, according to Shri Costa Frias no prejudice is caused to the petitioners, either. 12. In the end, Shri Costa Frias has tried to distinguish all the decisions the petitioners have cited and, in fact, tried to take advantage of a few. 13. Heard Shri A. Kakodkar, the learned counsel for the petitioners, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y operating under a particular statute, with a specific objective; (2) it can regulate its own procedure; and (3) the petitioner's addition to the proceedings is at the Lokayukta's own behest-suo motu. 19. 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. Section 12 deals with preliminary inquiry. First, it will ascertain whether there exists a reasonable ground for it to investigate the allegation. That is, it may refuse to investigate if (a) the complaint is frivolous or vexatious or mala fide, (b) there are no sufficient grounds for it to proceed, or (c) the complainant has more efficacious remedies available. The procedure the Lokayukta should adopt, as Section 12 (2) mandates, is "such as the Lokayukta or Upa-Lokayukta deems appropriate in the circumstances of the case". If it deems necessary, Lokayukta can "call for the comments of the public functionary concerned". This calling for comments at the preliminary stage, I must note, is only discretionary or optional. 20. Section 13 prescribes the procedure for a detailed investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while trying a suit under the Code of Civil Procedure. This power allows the Lokayukta to grant, among others, injunctions, commissions for local inspection, and so on. 24. The pivotal provision for us is Rule 9. Rule 9 allows the Lokayukta to strike out or add parties. The provision reads: 9. Power to strike out or add parties.- The Lokayukta or UpaLokayukta may, at any stage of the proceeding in a complaint, either suo-motu or on application, delete the name of any party improperly joined or, add as party any person who ought to have been joined or whose presence before the Lokayukta or UpaLokayukta is felt necessary in order to enable the Lokayukta or Upa-Lokayukta, to decide effectively and completely the question involved in any complaint and the provision of rule 10 of Order I of the Code of Civil Procedure, 1908 (Central Act 5 of 1908), shall, as far as may be, apply to such deletion or addition of parties. 25. This adding or deletion of a party can be at the instance of a party to the proceedings or suo motu. It can delete the name of any party improperly joined or add as a party any person who ought to have been joined or whose presence before the Lokayukta is necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am afraid this contention contains no merit. Under Section12, 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'. 31. In fact, the preliminary inquiry under the Andhra Pradesh Lokayuta Act (referred to by the petitioners' counsel) is more onerous and fraught with more drastic consequences. But even in the context of that statue, the Supreme Court has held in Ch. Rama Rao (as discussed below) that no notice is required. 32. Now, we may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I Rule 10 of the CPC permits a person's impleadment if his presence is essential for the court to determine the real matter in dispute. In other words, the necessary party's absence will have a deleterious consequence: it nonsuits the plaintiff for non-joinder of the necessary party. Walchandnagar Industries, as I understand, pursued the plaintiff's perspective; it has not dealt with why the proposed party need not be put on notice before it is brought on record. A party would safely expect to be notified, as the petitioners contend, before he was pushed into the arena of litigation, gratuitously. 37. This Court in Tulsidas P. Kheraj and the Madras High Court in Robust Hotels (P) Ltd., have taken a view that pre-impleadment notice is necessary. If we refer back to Star Light Credit, there the learned Single Judge disagrees with the holding of these two cases on the premise they did not deal with what prejudice the proposed party would suffer if it had no pre-impleadment notice. So let us examine those two decisions. (c) Robust Hotels: 38. In Robust Hotels, the entire discussion was on who could be a necessary party to a suit, and what entails that necessary party's presence or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment of such parties." Thus, Gunadhar Muttin has treated the order of impleadment as irregular for want of pre-impleadment notice. This decision, too, I may respectfully note, has supplied no reasons to read into Order I, Rule 10 the necessity of a pre-impleadment notice. (e) Mumbai International Airport: 42. In Mumbai International Airport Pvt., Ltd., the Supreme Court, per R. V. Raveendran J., has distinguished between the necessary party and property party. It has considered the scope and ambit of Order I of Rule 10(2) CPC and held that the "sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding." The discretion under the sub-rule, according to it, can be exercised either suo motu or on any party's application. The court can strike out any party who is improperly joined; it can also add anyone as a plaintiff or as a defendant if it finds he is a necessary or proper party. "Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose". In exercising its judicial discretion under Order 1 Rule 10(2) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re his impleadment. But, then, the provision does not also mandate that under no circumstance or situation should any notice go to the proposed party. Harmoniously construed, the provision, according to Ashwani Kumar, allows the court to exercise its discretion to decide whether it should issue a pre-impleadment notice to the proposed party. That is, it depends on the "facts of the lis itself". With respect, I agree with Ashwani Kumar. (g) Ch. Rama Rao: 48. Ch. Rama Rao is the decision both parties have relied on. So it needs a deeper analysis. An anonymous complaint accused the authorities of corruption in purchasing hospital equipment. After conducting preliminary investigation, the Lokayukta, through its interim order, directed the Government either to suspend the petitioner or to transfer him. Aggrieved, the petitioner challenged the constitutionality of Sections 3, 4, 7 and 12 of the Andhra Pradesh Lokayukta and Up Lokayukta Act, 1983, as ultra vires of Arts. 14, 16, 19, 21, 226 and 311 of the Constitution of India. He has challenged the interim report as well. Before the Supreme Court, the petitioner pressed for a ruling only on the procedure Lokayukta adopted in its asking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed party's elementary right. But if we scan the statutory scheme of Rule 10 of Order 1 CPC, P. Arumugha Gounder's sweeping statement about the pre-impleadment notice as mandatory is, to quote the very judgment, 'somewhat extraordinary'. (i) Bhimavarapu Venkateswara Reddi: 53. In Bhimavarapu Venkateswara Reddi, the High Court of Andhra Pradesh, per Kondaiah J (as his Lordship then was), acknowledges that under Order 1, Rule 10 CPC, the Court has suo motu power to add a party to the suit if it thinks it necessary to do so for effective adjudication of the rights of the parties. But it can do so only after notifying the proposed party or parties to the suit. The proposed party, in all fairness, must be given a reasonable opportunity to represent and to show, if he so desires, to the Court that he is neither a necessary nor proper party to the suit. Such a construction as this, Bhimavarapu Venkateswara Reddi opines, would be in accord with the principles of natural justice. Is this requirement an ironclad procedural imperative? Let us see. The Way forward: 54. Indisputably, Rule 10 of Order 1 of CPC empowers the court to implead a party suo motu if it reckons that the party's p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the imperative nature of the natural justice. Some decisions have held it as inviolable, and some have said if compliance is 'useless', it is dispensable. Now, jurisprudentially the Courts prefer to follow a middle path: the path of non-prejudice. If non-compliance causes no prejudice, the procedural violation does not prove fatal. But here, on facts and even in the statutory backdrop, is there any scope for importing the principles of natural justice? 59. In the civil matters, a suitor comes to court with a cause and grievance against a person or persons. The court takes the matter on file, numbers it, and serves summonses or notices on the opposite parties, say the defendants. Those defendants may file their written statements or may raise a preliminary objection even before their filing the written statements. That preliminary objection may take many forms. But let us assume there is more than one defendant. Some file their defence; some raise a preliminary objection; and some may assert that they ought not to have been parties to the proceedings; their inclusion is an abuse of process. 60. Faced with the last objection, the trial court will hear the parties on both sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rule 10 of Order I requires no pre-impleadment notice. Of course, this is only a collateral-not precedential-observation under the CPC. Public-purpose Perspective: 64. 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. 65. Put plainly, notice to every proposed party inevitably resultsin 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. 66. Under these circumstances, I see no merit in the petitioners' contentions. The Lokayukta's order suffers from no le ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
