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Lokayukt Act -Vs- Vidhan Sabha – Registration of FIR by Special Police Establishment of Lokayukt against Secretary , Deputy Secretary , Engineers of Vidhan Sabha, Contractors etc., over the construction works in the premises of Vidhan Sabha ,on complaint – Speaker issued breach of privileged letter against the Lokayukt Members etc., – it amounts to violation of Art.14 and 21 of Indian constitution – not maintainable and is liable to be quashed – Apex court set aside the letters of Speaker of Vidhan Sabha = Justice Ripusudan Dayal (Retd.) & Ors. …. Petitioner (s) Versus State of M.P. & Ors. …. Respondent(s) = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41245

Lokayukt Act -Vs- Vidhan Sabha – Registration of FIR by Special Police Establishment of Lokayukt against Secretary , Deputy Secretary , Engineers of Vidhan Sabha, Contractors etc., over the construction works in the premises of Vidhan Sabha ,on complaint – Speaker issued breach of privileged letters against the Lokayukt Members etc., – it amounts to violation of Art.14 and 21 of Indian constitution – not maintainable and is liable to be quashed – Apex court set aside the letters of  Speaker of Vidhan Sabha  =

Writ under Art.32

challenging  the  validity  of

certain letters issued by Mr. Qazi  Aqlimuddin  –  Secretary,  Vidhan  Sabha

(Respondent No.4 herein) on various dates against  them  with  regard  to  a

case registered by the Special Police Establishment (SPE)  of  the  Lokayukt

Organisation, against the officials of the Vidhan Sabha Secretariat as  well

as against the concerned officials of the  Capital  Project  Administration-

the Contractor  Company  alleging  irregularity  in  the  construction  work

carried out in the premises of Vidhan Sabha.   

Soon  after  the

registration of the criminal case, the  petitioners  received  the  impugned

notices dated 15.10.2007 wherein allegations of  breach  of  privilege  were

made against the petitioners.  The  petitioners  understood  that  the  said

letters had been issued on the basis of some complaints by  the  Members  of

Legislative Assembly.  The petitioners received further notices  for  breach

of privilege on the basis of the complaint made by Shri Gajraj Singh, MLA.

 

Being aggrieved by the initiation of action  by  the  Hon’ble  Speaker

for breach of privilege, the petitioners have preferred this writ petition.

 

Maintainability of Writ

 

the proposed actions are not permissible involving infringement of  Articles  14

and 21 of the Constitution, this Court is well  within  its  power  to  pass

appropriate order in exercise of its jurisdiction under Articles 32 and  142

of the Constitution.  Further, if the petitioners are compelled to face  the

privilege proceedings before the Vidhan Sabha, it would cause  prejudice  to

them.  Further, if the petitioners  are  compelled  to  face  the  privilege

motion in spite of  the  fact  that  no  proceeding  was  initiated  against

Hon’ble Speaker or Members of the House but only relating  to  the  officers

in respect of contractual matters, if urgent intervention is not sought  for

by  exercising  extraordinary  jurisdiction,  undoubtedly,  it  would  cause

prejudice to the petitioners.

 

30)   Accordingly,  we  reject  the  preliminary  objection  raised  by  the

counsel for Respondent No.4 and hold that writ petition under Article 32  is

maintainable.

 

(i) Whether the Legislative Assembly or its Members enjoy any  privilege  in

respect  of  an  inquiry  or  an  investigation  into  a  criminal   offence

punishable under any law for the time being in force, even when  inquiry  or

investigation was initiated in performance of duty enjoined by  law  enacted

by the very Legislative  Assembly  of  which  the  breach  of  privilege  is

alleged?

 

(ii) Whether officials of the  Legislative  Assembly  also  enjoy  the  same

privileges which are available to Assembly and its Members?

 

(iii) Whether seeking mere information or calling the  officials  of  Vidhan

Sabha Secretariat for providing information during inquiry or  investigation

amounts to breach of privilege?

(iv) In  view  of  the  letter  dated  23.08.2007,  sent  by  the  Principal

Secretary  to  Respondent  Nos.  10  and  11,  i.e.,  Secretary  and  Deputy

Secretary, Vidhan Sabha respectively directing them  to  appear  before  the

Lokayukt (as per the order of the Speaker), whether Respondent Nos.  10  and

11 can have any grievance that information  was  sought  from  them  without

sanction and knowledge of the Speaker?

 

Conclusion 

We are  of  the  view  that  the  action  being  investigated  by  the

petitioners has nothing to do with the proceedings of the House and as  such

the said action cannot constitute any breach of privilege of  the  House  or

its members.

 

66)   It is made clear that privileges are available only  insofar  as  they

are necessary in order that House may freely  perform  its  functions.   For

the application of laws, particularly, the provisions of the  Lokayukt  Act,

and the  Prevention  of  Corruption  Act,  1988,  the  jurisdiction  of  the

Lokayukt or the Madhya Pradesh  Special  Police  Establishment  is  for  all

public servants (except the Speaker and the Deputy  Speaker  of  the  Madhya

Pradesh Vidhan Sabha for the purposes of the Lokayukt Act) and no  privilege

is available to the officials and,  in  any  case,  they  cannot  claim  any

privilege more than an ordinary citizen to whom the provisions of  the  said

Acts apply.  Privileges do not extend to the activities  undertaken  outside

the House on which  the  legislative  provisions  would  apply  without  any

differentiation.

 

67)   In the present case, the action taken by  the  petitioners  is  within

the powers conferred under the above statutes  and,  therefore,  the  action

taken by the petitioners is legal.  Further, initiation of action for  which

the petitioners are legally  empowered,  cannot  constitute  breach  of  any

privilege.

 

68)   Under the provisions of Section 39(1)(iii) of  the  Code  of  Criminal

Procedure, 1973, every person who is aware of the commission of  an  offence

under  the  Prevention  of   Corruption  Act  is  duty  bound  to  give   an

information available with  him  to  the  police.   In  other  words,  every

citizen who has knowledge of the commission of a cognizable  offence  has  a

duty to lay  information  before  the  police  and  to  cooperate  with  the

investigating officer who is enjoined to collect the evidence.

 

69)   In the light of the above  discussion  and  conclusion,  the  impugned

letters/notices are quashed and the writ petition is allowed as prayed  for.

 No order as to costs.

 

2014(Feb.Part) judis.nic.in/supremecourt/filename=41245

P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH

 

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
1 WRIT PETITION (CIVIL) NO. 613 OF 2007

 
Justice Ripusudan Dayal (Retd.) & Ors. …. Petitioner (s)

Versus

State of M.P. & Ors. …. Respondent(s)

2

 

 

 

 

J U D G M E N T
P.Sathasivam, CJI.

1) The present writ petition, under Article 32 of the Constitution of
India, has been filed by the petitioners challenging the validity of
certain letters issued by Mr. Qazi Aqlimuddin – Secretary, Vidhan Sabha
(Respondent No.4 herein) on various dates against them with regard to a
case registered by the Special Police Establishment (SPE) of the Lokayukt
Organisation, against the officials of the Vidhan Sabha Secretariat as well
as against the concerned officials of the Capital Project Administration-
the Contractor Company alleging irregularity in the construction work
carried out in the premises of Vidhan Sabha.

2) It is relevant to mention that Petitioner No.1 herein was the
Lokayukt of the State of Madhya Pradesh appointed under the provisions of
the Madhya Pradesh Lokayukt Evam Uplokayukt Act, 1981 (hereinafter referred
to as “the Lokayukt Act”). Petitioner No.2 was the Legal Advisor, a member
of the Madhya Pradesh Higher Judicial Service on deputation with the
Lokayukt and Petitioner Nos. 3 to 5 were the officers of Madhya Pradesh
Special Police Establishment.

3) The petitioners herein claimed that the said letters violate their
fundamental rights under Articles 14, 19 and 21 of the Constitution of
India and are contrary to Article 194(3) and prayed for the issuance of a
writ, order or direction(s) quashing the said letters as well as the
complaints filed by Respondent Nos. 5, 6 (since expired), 7, 8 and 9
herein.

 

4) Brief facts

(a) An anonymous complaint was received on 21.06.2005 in the office of
the Lokayukt stating that a road connecting the Vidhan Sabha with Vallabh
Bhawan, involving an expenditure of about Rs. 2 crores, was being
constructed without inviting tenders and complying with the prescribed
procedure. It was also averred in the said complaint that with a view to
regularize the above-said works, the officers misused their official
position and got the work sanctioned to the Capital Project Administration
in violation of the rules which amounts to serious financial irregularity
and misuse of office. It was also mentioned in the said complaint that in
order to construct the said road, one hundred trees had been cut down
without getting the permission from the concerned department. The said
complaint was registered as E.R. No.127 of 2005. During the inquiry, the
Deputy Secretary, Housing and Environment Department, vide letter dated
18.08.2005 stated that the work had been allotted to the lowest tenderer
and the trees were cut only after obtaining the requisite permission from
the Municipal Corporation. In view of the said reply, the matter was
closed on 22.08.2005.

(b) On 22.12.2006, again a complaint was filed by one Shri P.N. Tiwari,
supported with affidavit and various documents, alleging the same
irregularities in the said construction work by the officers of the Vidhan
Sabha Secretariat in collusion with the Capital Project Administration
which got registered as E.R. No. 122 of 2006. A copy of the said complaint
was sent to the Principal Secretary, Madhya Pradesh Government, Housing and
Environment Department for comments. In reply, the Additional Secretary,
M.P. Government, Housing and Environment Department submitted the comments
along with certain documents stating that the Building Controller Division
working under the Capital Project Administration was transferred to the
administrative control of the Vidhan Sabha Secretariat vide Order dated
17.07.2000 and consequently the Secretariat Vidhan Sabha was solely
responsible for the construction and maintenance work within the Vidhan
Sabha premises.

(c) On 26.06.2007, a request was made to the Principal Secretary, Housing
and Environment Department to submit all the relevant records, tender
documents, note sheets, administrative, technical and budgetary sanctions
by 10.10.2007. By letter dated 17.07.2007, the Under Secretary of the said
Department informed that since the administrative sanctions were issued by
the Secretariat Vidhan Sabha, the materials were not available with them.
In view of the said reply, the Lokayukt-(Petitioner No.1 herein) sent
letters dated 31.07.2007 addressed to the Principal Secretary, Housing and
Environment Department, Administrator, Capital Project Administration and
the Deputy Secretary, Vidhan Sabha Secretariat to appear before him along
with all the relevant records on 10.08.2007. On 10.08.2007, the Principal
Secretary, Housing and Environment appeared before the Lokayukt and
informed that since the Controller Buildings of Capital Project
Administration was working under the administrative control of the Vidhan
Sabha Secretariat since 2000, all sanctions/approvals and records relating
to construction and maintenance work were available in the Vidhan Sabha
Secretariat. In view of the above reply, the Lokayukt summoned the
Secretary and the Deputy Secretary, Vidhan Sabha, Respondent Nos. 10 and 11
respectively on 24.08.2007 to give evidence and produce all records/note-
sheets of administrative and technical sanctions and budgetary and tender
approvals relating to construction works carried out in MLA Rest House and
Vidhan Sabha Premises in the year 2005-2006.

(d) The Secretary, Vidhan Sabha, Respondent No. 10 herein, in his
deposition dated 24.08.2007, admitted giving of administrative approval to
the estimated cost which was available with the office of the Lokayukta and
stated that the relevant note-sheet was in the possession of the Hon’ble
Speaker, therefore, he prayed for time to produce the same by 07.09.2007.

(e) Vide letter dated 07.09.2007, Respondent No.10 conveyed his inability
to produce the same. After receiving information from the Chief Engineer,
Public Works Department, Capital Project, Controller Buildings, Vidhan
Sabha, Capital Project Administration and Chief Engineer, Public Works
Department vide letters dated 11.09.2007, 13.09.2007 and 18.09.2007
respectively, the Legal Advisor –Petitioner No. 2 herein – a member of the
M.P. Higher Judicial Service thoroughly examined the same and found that it
is a fit case to be sent to the SPE for taking action in accordance with
law. Petitioner No.1 was in agreement with the said opinion. Thereafter,
Crime Case No. 33/07 was registered against the Secretary, Vidhan Sabha
(Respondent No.10 herein), Shri A.P. Singh, Deputy Secretary, Vidhan Sabha,
the then Administrator, Superintendent Engineer, Capital Project
Administration and Contractors on 06.10.2007.

(f) After registration of the case, Petitioner No.1 received the impugned
letters dated 15.10.2007 and 18.10.2007 alleging breach of privilege under
Procedures and Conduct of Business Rules 164 of the Madhya Pradesh Vidhan
Sabha against him and the officers of the Special Police Establishment. In
response to the aforesaid letters, by letter dated 23.10.2007, the
Secretary, Lokayukt explained the factual position of Petitioner No.1
herein stating that no case of breach of privilege was made out and also
pointed out that neither any complaint had been received against the
Hon’ble Speaker nor any inquiry was conducted by the Lokayukt Organization
against him nor his name was found in the FIR.

(g) On 26.10.2007, the Secretary, Vidhan Sabha – Respondent No.4 sent six
letters stating that the reply dated 23.10.2007 is not acceptable and that
individual replies should be sent by each of the petitioners.

(h) Being aggrieved by the initiation of action by the Hon’ble Speaker
for breach of privilege, the petitioners have preferred this writ petition.

5) Heard Mr. K.K. Venugopal, learned senior counsel for the writ
petitioners, Mr. Mishra Saurabh, learned counsel for the State-Respondent
No. 1 and Mr. C.D. Singh, learned counsel for the Secretary, Vidhan Sabha-
Respondent No.4.

 

 

Contentions:

6) Mr. K.K. Venugopal, learned senior counsel for the petitioners raised
the following contentions:-

(i) Whether the Legislative Assembly or its Members enjoy any privilege in
respect of an inquiry or an investigation into a criminal offence
punishable under any law for the time being in force, even when inquiry or
investigation was initiated in performance of duty enjoined by law enacted
by the very Legislative Assembly of which the breach of privilege is
alleged?

(ii) Whether officials of the Legislative Assembly also enjoy the same
privileges which are available to Assembly and its Members?

(iii) Whether seeking mere information or calling the officials of Vidhan
Sabha Secretariat for providing information during inquiry or investigation
amounts to breach of privilege?

(iv) In view of the letter dated 23.08.2007, sent by the Principal
Secretary to Respondent Nos. 10 and 11, i.e., Secretary and Deputy
Secretary, Vidhan Sabha respectively directing them to appear before the
Lokayukt (as per the order of the Speaker), whether Respondent Nos. 10 and
11 can have any grievance that information was sought from them without
sanction and knowledge of the Speaker?

7) On behalf of the respondents, particularly, Respondent No.4-
Secretary, Vidhan Sabha, Mr. C.D. Singh, at the foremost submitted that the
present petition under Article 32 of the Constitution of India invoking
writ jurisdiction of this Court is not maintainable as no fundamental right
of the petitioners, as envisaged in Part III of the Constitution, has been
violated by any of the actions of Respondent No. 4. It is their stand that
every action pertaining to the Assembly and its administration is within
the domain and jurisdiction of the Hon’ble Speaker. The matter of
privilege is governed under the rules as contained in Chapter XXI of the
Rules of Procedure and Conduct of Business in the Madhya Pradesh Vidhan
Sabha. Hence, it is stated that the writ petition is liable to be
dismissed both on the ground of maintainability as well as on merits.

8) Before considering rival contentions and the legal position, it is
useful to recapitulate the factual details and relevant statutory
provisions which are as under:-

The legislature of the Central Province and Berar enacted the Central
Provinces and Berar Special Police Establishment Act, 1947 (hereinafter
referred to as ‘the SPE Act’). Under the said Act, a Special Police Force
was constituted which has power to investigate the offences notified by the
State Government under Section 3 of the said Act, which reads as under:-

“3. Offences to be investigated by Special Police Establishment:- The
State Government may, by notifications, specify the offences or
classes of offences which are to be investigated by (Madhya Pradesh)
Special Police Establishment.”

9) On 16.09.1981, Legislative Assembly of the State of Madhya Pradesh
enacted the Lokayukt Act with the following objective as has been stated in
the preamble of the said Act:-

“An Act to make provision for the appointment and functions of certain
authorities for the enquiry into the allegation against “Public
Servants” and for matters connected there with.”

Section 2(a) of the Lokayukt Act defines “officer” in the following manner:-
“officer” means a person appointed to a public service or post in
connection with the affairs of the State of Madhya Pradesh.”

Section 2(b) defines “allegation” as follows:-

“allegation” in relation to a public servant means any affirmation
that such public servant,

(i) has abused his position as such to obtain any gain or favour to
himself or to any other person or to cause undue harm to any person;

(ii) was actuated in the discharge of his functions as such public
servant by improper or corrupt motives;

(iii) is guilty of corruption; or

(iv) is in possession of pecuniary resources or property
disproportionate to his known sources of income and such pecuniary
resources or property is held by the public servant personally or by
any member of his family or by some other person on his behalf.

Explanation:- For the purpose of this sub-clause “family” means
husband, wife, sons and unmarried daughters living jointly with him;”

The phrase “Public Servant” has been defined under Section 2(g) of the
Lokayukt Act in the following terms:

“Public Servant” means a person falling under any of the following
categories, namely:-

(i) Minister;

(ii) a person having the rank of a Minister but shall not include
Speaker and Deputy Speaker of the Madhya Pradesh Vidhan Sabha;

(iii) an officer referred to in clause (a);

(iv) an officer of an Apex Society or Central Society within the
meaning of Clause (t-1) read with Clauses (a-1), (c-1) and (z) of
Section 2 of the Madhya Pradesh Co-operative Societies Act, 1960 (No.
17 of 1961).

(v) Any person holding any office in, or any employee of –

(i) a Government Company within the meaning of Section 617 of
the Companies Act, 1956; or

(ii) a Corporation or Local Authority established by State
Government under a Central or State enactment.

(vi) (a) Up-Kulpati, Adhyacharya and Kul Sachiva of the Indira Kala
Sangit Vishwavidyalaya constituted under Section 3 of the Indira Kala
Sangit Vishwavidyalaya Act, 1956 (No. 19 of 1956);

(b) Kulpati and Registrar of the Jawahar Lal Nehru Krishi
Vishwavidyalaya constituted under Section 3 of the Jawaharlal Nehru
Krishi Vishwavidyalaya Act, 1963 (No. 12 of 1963);

Kulpati Rector and Registrar of the Vishwavidyalay constituted under
Section 5 of the Madhya Pradesh Vishwavidyalay Adhiniyam, 1973 (No. 22
of 1973).”

 

10) Thus, all persons, except those specifically excluded under the said
definition, come within the domain of the Lokayukt Act and the Lokayukt
can, therefore, entertain complaints and take actions in accordance with
the said provisions. Section 7 of the said Act thereafter defines the role
of the Lokayukt and the Up-Lokayukt in the following terms:-

“7. Matters which may be enquired into by Lokayukt or Up-Lokayukt:-

Subject to the provision of this Act, on receiving complaint or other
information:-

(i) the Lokayukt may proceed to enquire into an allegation made
against a public servant in relation to whom the Chief Minister is the
competent authority.

(ii) the Up-Lokayukt may proceed to enquire into an allegation made
against any public servant other than referred to in clause (i)

Provided that the Lokayukt may enquire into an allegation made against
any public servant referred to in clause (ii).

Explanation:- For the purpose of this Section, the expression “may
proceed to enquire”, and “may enquire”, include investigation by
Police agency put at the disposal of Lokayukt and Up-Lokayukt in
pursuance of sub-Section (3) of Section 13.

11) On 14.09.2000, the State Government issued a notification in exercise
of powers under Section 3 of the SPE Act by which the Special Police
Establishment was empowered to investigate offences with regard to the
following offences:-

(a) Offences punishable under the Prevention of Corruption Act, 1988
(No. 49 of 1988);

(b) Offences under Sections 409 and 420 and Chapter XVIII of the
Indian Penal Code, 1860 (No. XLV of 1860) when they are committed,
attempted or abused by public servants or employees of a local
authority or a statutory corporation, when such offences adversely
affect the interests of the State Government or the local authority or
the statutory corporation, as the case may be;

(c) Conspiracies in respect of offences mentioned in item (a) and (b)
above; and

(d) Conspiracies in respect of offences mentioned in item (a) and (b)
shall be charged with simultaneously in one trial under the provisions
of Criminal Procedure Code, 1973 (No. 2 of 1974).

12) As per the provision of Section 4 of the SPE Act, the superintendence
of investigation by the M.P. Special Police Establishment was vested in the
Lokayukt appointed under the Lokayukt Act.

13) On 22.12.2006, a complaint was received from one Shri P.N. Tiwari
supported by affidavit and various documents making allegations that works
had been carried out in the new Assembly building by the Capital Project
Administration in gross violation of the rules, without making budgetary
provisions and committing financial irregularities. The said complaint was
registered as E.R. 122 of 2006. In the said complaint, it was mentioned
that:

(a) An order had been issued to the Administrator, Capital Project
Administration by Shri A.P. Singh, Deputy Secretary, Vidhan Sabha
giving administrative approval for the estimate of the cost of
construction against rules and without making budgetary provision vide
order dated 19.10.2005 in respect of the following works:
|S.No. |Name of works |Amount in |
| | |lakhs |
|(i) |Construction of 30 rooms in MLA Rest |Rs. 5.51 |
| |House Block-2 | |
|(ii) |Construction of toilets in Block 1-3 |Rs. 25.48 |
| |of MLA Rest House | |
|(iii) |Construction of shops in MLA Rest |Rs. 5.98 |
| |House premises | |
|(iv) |Up-gradation/construction of road from| |
| |Mazar to Gate No. 5 of Vidhan Sabha | |
| |(Old Jail) | |
| |(a) Construction of road from Mazar to|Rs. 22.52 |
| |Rotary | |
| |(b) Construction of road from Rotary |Rs. 13.23 |
| |to Jail Road | |
|(v) |Construction of lounge for the Speaker|Rs. 6.80 |
| |and Officers in Vidhan Sabha Hall | |
|(vi) |Construction of new reception zone |Rs. 54.00 |
| |(including parking/road) for Vidhan | |
| |Sabha | |
|(vii) |Upgradation work of campus lights and |Rs. 26.60 |
| |electric work in MLA Rest House | |
| |premises | |
|(viii) |Construction of road from Vidhan Sabha| |
| |to Secretariat (including development | |
| |of helipad and connected area) and | |
| |proposed upgradation and development | |
| |work of M.P. Pool/spraypond: | |
| |(a) Construction of new road from the |Rs. 10.85 |
| |VIP entrance upto the proposed new | |
| |gate | |
| |(b) Construction of road from present |Rs. 21.56 |
| |Char Diwari to Rotary | |
| |(c) Construction of road from Rotary |Rs. 12.00 |
| |to Secretariat | |
| |Total sanctioned amount |Rs. 204.53 |
(b) the officers had abused their powers by getting the works carried out
without making budgetary provisions and without getting approval from
the Finance Department in respect of the works specified at item
numbers (iv), (vi), (vii) and (viii) above.

(c) Following financial irregularities were also pointed out:

(i) Though administrative approval was accorded by Shri A.P. Singh,
Deputy Secretary, Vidhan Sabha on 19.10.2005, works had already
been executed and inaugurated in the presence of the then Chief
Minister, Shri Babulal Gaur and the Speaker, Vidhan Sabha and
other Ministers on 03.08.2005. The proper procedure is to first
invite tenders and it is only after the acceptance of the
suitable tenders that work orders are to be issued.

(ii) Budgetary head of the Vidhan Sabha is 1555. This head is meant
for maintenance and not for new construction, but the
administrative approval dated 19.10.2005 was accorded by Shri
A.P. Singh, Deputy Secretary, Vidhan Sabha in respect of new
works of total value of Rs. 160.76 lakh.

iii) Works of the value of Rs. 160.76 lakh were carried out without
any budgetary provision and also without the approval of the
Finance Department. Furthermore, a proposal had been sent by
the Capital Project Administration for sanction of budget but
the same was not approved by the Finance Department. Even then
the works were got executed.

iv) As per the approval dated 19.10.2005, expenditure was to be
incurred from the main budgetary head 2217 which is the head of
Urban Development. From that head, construction activities in
the Vidhan Sabha premises could not be carried out.

v) The Controller Buildings, Capital Project (Vidhan Sabha)
executed the works in collusion with the other officers and in
violation of the rules. It was stated that the officials had
abused their powers to regularize their irregular activities.
The works had been undertaken for the personal benefit of some
officers and payments were made in violation of the rules.

14) By letter dated 04.01.2007, a copy of the complaint was sent to the
Principal Secretary, Madhya Pradesh Government, Housing and Environment
Department calling factual comments along with the relevant documents. The
comments were submitted by the Additional Secretary, M.P. Government,
Housing and Environment Department vide letter dated 15.05.2007. The
comments, inter alia, stated that the Building Controller Division
functioning under the Capital Project Administration was transferred to the
administrative control of the Vidhan Sabha Secretariat vide order dated
17.07.2000, consequently, Secretariat Vidhan Sabha is solely responsible
for the construction and maintenance works within the Vidhan Sabha
premises. On examination of the comments received along with the
supporting documents, following discrepancies were revealed:

(a) Whereas the comments stated that budget provision had been made for
an amount of Rs.204.53 lakh for the purpose of special repairs and
maintenance of old and new Vidhan Sabha and MLA Rest House under
Demand No. 21, main head 2217, sub main head 01, minor head 001,
development head 1555 (3207), no amounts were specified under those
heads, sub heads and minor heads which were related to new
construction works;

(b) Whereas the comments stated that work had been executed through
tenders, but tender documents had not been annexed.

(c) Whereas the comments stated that approval in respect of nine works
had been accorded by the Secretariat, Vidhan Sabha on the request of
the Controller Buildings on 21.03.2005, however, it is not clear from
the letter dated 21.03.2005 that administrative approval had been
accorded; and

(d) Whereas the comments stated that amended sanction was granted vide
order dated 19.10.2005, while the letter dated 19.10.2005 does not
indicate that it was an amended administrative sanction.

15) In view of the above preliminary observations, as noted above, a
request was made to the Principal Secretary, Housing and Environment
Department to submit all relevant records, tender documents, note-sheets,
administrative, technical and budgetary sanctions by 10.07.2007. It was
again informed by the Under Secretary, Housing and Environment Department,
vide letter dated 17.07.2007 that since the administrative sanctions were
issued by the Secretariat Vidhan Sabha, the note-sheets/records relating to
such sanctions were not available with the Housing and Environment
Department.

16) In view of the reply submitted by the Under Secretary, Housing and
Environment Department, the Petitioner sent a letter dated 31.07.2007
addressed to the Principal Secretary, Housing and Environment Department,
Administrator, Capital Project Administration and the Deputy Secretary,
Vidhan Sabha Secretariat to appear before the Lokayukt along with all
relevant information/records on 10.08.2007.

17) On the date fixed for appearance, i.e., 10.08.2007, the Principal
Secretary, Housing and Environment appeared before the Lokayukt. He
informed that since the Controller Buildings of Capital Project
Administration was working under the administrative control of the Vidhan
Sabha Secretariat since the year 2000, all sanctions/approvals and records
regarding construction and maintenance works carried out in MLA Rest House
and Vidhan Sabha premises were available in the Vidhan Sabha Secretariat.
On receiving such information, the Principal Secretary, Vidhan Sabha
Secretariat, informed that the records relating to construction works were
not with him and that such type of work was looked after by the Secretary
and the Deputy Secretary, Vidhan Sabha. In this situation, Secretary and
Deputy Secretary, Vidhan Sabha Secretariat and Controller Buildings, Vidhan
Sabha, Capital Project Administration were summoned to give evidence and
produce all records/note-sheets of administrative and technical sanctions
and budgetary and tender approvals relating to construction works carried
out in MLA Rest House and Vidhan Sabha premises in the year 2005-06 on
24.08.2007. Summons were issued as per the provisions of Section 11(1) of
the Lokayukt Act, read with Sections 61 and 244 of the Code of Criminal
Procedure, 1973. Summons were received by the Deputy Secretary, Vidhan
Sabha, Shri G.K. Rajpal and the Controller Buildings, Shri Devendra Tiwari.
Process Server of the Lokayukt Organisation tried to serve summons on Shri
Israni in his office. Process Server contacted Shri Harish Kumar Shrivas,
P.A. to Shri Israni. The P.A. took the summons to Shri Israni. After
coming back, he asked the Process Server to wait till 4.00 p.m. Later, the
P.A. told the Process Server to take permission of the Hon’ble Speaker to
effect service of the summons on the Secretary. As such, summons could not
be served on Shri Israni.

18) Thereafter, D.O. letter dated 14.08.2007 was received from the
Principal Secretary, Vidhan Sabha stating that as per the direction of the
Hon’ble Speaker, he was informing the Lokayukt Organization that:

(a) The Vidhan Sabha Secretariat was not aware as to the complaint which
was being inquired into;

(b) All proceedings relating to invitation of tenders, technical
sanction, work orders and payment etc. were conducted through the
Controller Buildings, Capital Project Administration and, therefore,
all the records relating to these works should be available with them;

(c) If, a copy of the complaint, which is being inquired into, is made
available to the Vidhan Sabha Secretariat, it would be possible to
make the position more clear. That was the reason why the Speaker had
not granted permission to the Deputy Secretary to appear in the Office
of the Lokayukt; and

(d) Under the provisions of Section 2(g)(ii) of the Lokayukt Act, the
Speaker, the Deputy Speaker and the Leader of Opposition are exempted
from the jurisdiction of the Lokayukt.

19) Shri Israni appeared before the Lokayukt on 24.08.2007 when his
deposition was recorded. In his deposition, he stated that the
administrative approval to the estimated cost dated 19.10.2005 was given,
which was available with the office of the Lokayukt. He further stated
that note-sheet relating to administrative approval had been prepared which
was in possession of the Speaker. Accordingly, he was required to produce
the same by 07.09.2007.

20) Information was called for from the Chief Engineer, Public Works
Department, Capital Project Administration, Controller Buildings, Vidhan
Sabha, Capital Project Administration and Chief Engineer, Public Works
Department. The same was received vide letters dated 11.09.2007,
13.09.2007 and 18.09.2007 respectively.

21) Scrutiny note was prepared by the Legal Advisor, Mrs. Vibhawari
Joshi, a member of the Madhya Pradesh Higher Judicial Service, on
deputation to the Lokayukt Organization, with the assistance of the
Technical Cell, with the approval of the Lokayukt. After examination of
the information and records received from the various authorities
concerned, she prima facie found established that:

(a) contracts in respect of construction of roads and reception plaza and
renovation of toilets were awarded at rates higher than the prevailing
rates;

(b) works were got executed even when there were no budgetary provisions.
Demand for budget was made from the Finance Department but the same had
not been accepted;

(c) new construction works of the value of Rs. 173.54 lakh were got
executed from the maintenance head, which was not permissible, since the
maintenance head is meant for maintenance works and not for new works;

(d) for new construction works of the value of Rs.173.54 lakh,
administrative approval and technical sanction had been accorded by the
authorities, who were not competent to do so;

(e) works of Rs.205.61 lakh were got executed without obtaining
administrative approval and technical sanction;

(f) records show that measurements of WBM work were recorded after the
Bitumen work (tarring) had been completed. Proper procedure is that first
the measurements of WBM work are recorded, thereafter Bitumen work is
executed and it is only thereafter measurements of Bitumen work are
recorded. Discrepancies in the recording of measurements create doubt;

(g) Rules provide that in the Notice Inviting Tenders (NIT), schedule of
quantities is annexed so that the tenderers may make proper assessment
while quoting rates, but in the present case, in the NIT for roads in
Schedule-I, quantities were not specified. So, it was difficult for the
tenderers to make proper assessment while quoting rates. This throws doubt
on the legitimacy of the process.

(h) (i) Road was to be constructed within the diameter of 300 meters.
For this small area, work was split up into five portions and four
contractors were engaged. Rules provide that for one road, there
should be one estimate, one technical sanction and one NIT. In the
present case, five estimates were prepared, five technical sanctions
were granted, five tenders were invited and four contractors were
engaged. This throws doubt on the legitimacy of the process;

(ii) There are three processes involved in the construction of roads,
i.e., WBM, Bitumen and thermoplastic. As per the rules and practice,
for all the three processes, there should be one tender, but in the
present case, the work was split up into three portions inasmuch work
of WBM was given to two contractors, work of Bitumen to one other and
work of thermoplastic to still another;

(iii) Cement concrete road was constructed for a small part of the
same road. For this small part of the road another separate NIT was
invited and work was awarded to a separate contractor, i.e., the fifth
contractor;

(i) The Secretary and the Deputy Secretary of Vidhan Sabha Secretariat
and Administrator, Superintending Engineer and Controller Buildings of
Capital Project Administration in collusion with the contractors, in order
to give undue benefits to them by abusing their official position caused
loss of Rs.12,62,016/- to Rs.20,71,978/- to the Government.

In view of the above, the Legal Advisor (Petitioner No.2 herein) recorded
her opinion that it is a fit case to be sent to the SPE for taking action
in accordance with law. The Lokayukt Petitioner No. 1 agreed with the note
of the Legal Advisor and observed that it is a fit case to be dealt with
further by the SPE. The case was accordingly sent to the SPE.

22) The SPE, thereafter, registered Crime Case No. 33/07 on 06.10.2007
against Shri Bhagwan Dev Israni, Secretary Vidhan Sabha, Shri A.P. Singh,
Deputy Secretary Vidhan Sabha, the then Administrator, Superintending
Engineer, Capital Project Administration and Contractors. Soon after the
registration of the criminal case, the petitioners received the impugned
notices dated 15.10.2007 wherein allegations of breach of privilege were
made against the petitioners. The petitioners understood that the said
letters had been issued on the basis of some complaints by the Members of
Legislative Assembly. The petitioners received further notices for breach
of privilege on the basis of the complaint made by Shri Gajraj Singh, MLA.

23) In response to the aforesaid letters, the Secretary of the Lokayukt
Organization, on the direction of the Petitioner No. 1 sent a letter dated
23.10.2007, to Respondent No. 4-Shri Qazi Aqlimuddin, Secretary, Vidhan
Sabha giving in details about the constitutional, legal and factual
position stating that no case of privilege was made out. It was also
pointed out that neither any complaint had been received against the
Speaker, Respondent No. 1 nor any inquiry was conducted by the Lokayukt
Organization against him nor was he named in the FIR.

24) Respondent No. 4, i.e., Secretary, Vidhan Sabha, thereafter sent six
letters dated 26.10.2007 to the petitioners. By the said letters, the
petitioners were informed that the reply dated 23.10.2007 had not been
accepted and it was directed that individual replies should be sent by each
of the petitioners. Being aggrieved by the initiation of action by the
Speaker for breach of privilege against the petitioners, as noted above,
the petitioners herein filed the present writ petition.

Maintainability of the writ petition under Article 32 of the Constitution:

25) Mr. C.D. Singh, learned counsel appearing for Respondent No.4, by
drawing our attention to the relief prayed for and of the fact that
quashing relates to letters on various dates wherein after pointing out the
notice of breach of privilege received from the members of Madhya Pradesh
Assembly sought comments/opinion within seven days for consideration of the
Hon’ble Speaker, submitted that the proper course would be to submit their
response and writ petition under Article 32 of the Constitution of India is
not maintainable.

26) Mr. Venugopal, learned senior counsel for the petitioners submitted
that as the impugned proceedings which are mere letters calling for
response as they relate to breach of privilege, amount to violation of
rights under Article 21 of the Constitution, hence, the present writ
petition is maintainable. In support of his claim, he referred to various
decisions of this Court.

27) There is no dispute that all the impugned proceedings or
notices/letters/complaints made by various members of the Madhya Pradesh
Assembly claimed that the writ petitioners violated the privilege of the
House. Ultimately, if their replies are not acceptable, the petitioners
have no other remedy except to face the consequence, namely, action under
Madhya Pradesh Vidhan Sabha Procedure and Conduct of Business Rules, 1964.
If any decision is taken by the House, the petitioners may not be in a
position to challenge the same effectively before the court of law. In The
Bengal Immunity Company Limited vs. The State of Bihar and Others, [1955] 2
SCR 603, seven Hon’ble Judges of this Court accepted similar writ petition.
The said case arose against the judgment of the High Court of Patna dated
04.12.1952 whereby it dismissed the application made by the appellant-
Company under Article 226 of the Constitution praying for an appropriate
writ or order quashing the proceedings issued by the opposite parties for
the purpose of levying and realising a tax which is not lawfully leviable
on the petitioners and for other ancillary reliefs. As in the case on
hand, it has been argued before the seven-Judge Bench that the application
was premature, for there has, so far, been no investigation or finding on
facts and no assessment under Section 13 of the Act. Rejecting the said
contention, this Court held thus:

“…. In the first place, it ignores the plain fact that this notice,
calling upon the appellant company to forthwith get itself registered
as a dealer, and to submit a return and to deposit the tax in a
treasury in Bihar, places upon it considerable hardship, harassment
and liability which, if the Act is void under article 265 read with
article 286 constitute, in presenti, an encroachment on and an
infringement of its right which entitles it to immediately appeal to
the appropriate Court for redress. In the next place, as was said by
this Court in Commissioner of Police, Bombay vs. Gordhandas Bhanji,
[1952] 3 SCR 135 when an order or notice emanates from the State
Government or any of its responsible officers directing a person to do
something, then, although the order or notice may eventually transpire
to be ultra vires and bad in law, it is obviously one which prima
facie compels obedience as a matter of prudence and precaution. It
is, therefore, not reasonable to expect the person served with such an
order or notice to ignore it on the ground that it is illegal, for he
can only do so at his own risk and that a person placed in such a
situation has the right to be told definitely by the proper legal
authority exactly where he stands and what he may or may not do.

Another plea advanced by the respondent State is that the
appellant company is not entitled to take proceedings praying for the
issue of prerogative writs under article 226 as it has adequate
alternative remedy under the impugned Act by way of appeal or
revision. The answer to this plea is short and simple. The remedy
under the Act cannot be said to be adequate and is, indeed, nugatory
or useless if the Act which provides for such remedy is itself ultra
vires and void and the principle relied upon can, therefore, have no
application where a party comes to Court with an allegation that his
right has been or is being threatened to be infringed by a law which
is ultra vires the powers of the legislature which enacted it and as
such void and prays for appropriate relief under article 226. As said
by this Court in Himmatlal Harilal Mehta vs. The State of Madhya
Pradesh (supra) this plea of the State stands negatived by the
decision of this Court in The State of Bombay vs. The United Motors
(India) Ltd. (supra). We are, therefore, of the opinion, for reasons
stated above, that the High Court was not right in holding that the
petition under article 226 was misconceived or was not maintainable.
It will, therefore, have to be examined and decided on merits…. ….”

 

28) In East India Commercial Co., Ltd., Calcutta and Another vs. The
Collector of Customs, Calcutta, [1963] 3 SCR 338, which is a three-Judge
Bench decision, this Court negatived similar objection as pointed out in
our case by the State. In that case, the appellants-East India Commercial
Co. Ltd., Calcutta had brought into India from U.S.A. a large quantity of
electrical instruments under a licence. The respondent, Collector of
Customs, Calcutta, started proceedings for confiscation of these goods
under Section 167(8) of the Sea Customs Act, 1878. The appellants mainly
contended that the proceedings are entirely without jurisdiction as the
Collector can confiscate only when there is an import in contravention of
an order prohibiting or restricting it and in that case the Collector was
proceeding to confiscate on the ground that a condition of the licence
under which the goods had been imported had been disobeyed. The
appellants, therefore, prayed for a writ of prohibition directing the
Collector to stop the proceedings. The objection of the other side was
that the appellant had approached the High Court at the notice stage and
the same cannot be considered under Article 226 of the Constitution.
Rejecting the said contention, this Court held:

“…..The respondent proposed to take action under Section 167(8) of the
Sea Customs Act, read with Section 3(2) of the Act. It cannot be
denied that the proceedings under the said sections are quasi-judicial
in nature. Whether a statute provides for a notice or not, it is
incumbent upon the respondent to issue notice to the appellants
disclosing the circumstances under which proceedings are sought to be
initiated against them. Any proceedings taken without such notice
would be against the principles of natural justice. In the present
case, in our view, the respondent rightly issued such a notice wherein
specific acts constituting contraventions of the provisions of the
Acts for which action was to be initiated were clearly mentioned.
Assuming that a notice could be laconic, in the present case it was a
speaking one clearly specifying the alleged act of contravention. If
on a reading of the said notice, it is manifest that on the assumption
that the facts alleged or allegations made therein were true, none of
the conditions laid down in the specified sections was contravened,
the respondent would have no jurisdiction to initiate proceedings
pursuant to that notice. To state it differently, if on a true
construction of the provisions of the said two sections the respondent
has no jurisdiction to initiate proceedings or make an inquiry under
the said sections in respect of certain acts alleged to have been done
by the appellants, the respondent can certainly be prohibited from
proceeding with the same. We, therefore, reject this preliminary
contention.”

 

29) In Kiran Bedi & Ors. vs. Committee of Inquiry & Anr. [1989] 1 SCR 20,
which is also a three Judge Bench decision, the following conclusion in the
penultimate paragraph is relevant:

“47 As regards points (v), (vi) and (vii) suffice it to point out that
the petitioners have apart from filing special leave petitions also
filed writ petitions challenging the very same orders and since we
have held that the action of the Committee in holding that the
petitioners were not covered by Section 8B of the Act and compelling
them to enter the witness box on the dates in question was
discriminatory and the orders directing complaint being filed against
the petitioners were illegal, it is apparently a case involving
infringement of Articles 14 and 21 of the Constitution. In such a
situation the power of this Court to pass an appropriate order in
exercise of its jurisdiction under Articles 32 and 142 of the
Constitution cannot be seriously doubted particularly having regard to
the special facts and circumstances of this case. On the orders
directing filing of complaints being held to be invalid the
consequential complaints and the proceedings thereon including the
orders of the Magistrate issuing summons cannot survive and it is in
this view of the matter that by our order dated 18th August, 1988 we
have quashed them. As regards the submission that it was not a fit
case for interference either under Article 32 or Article 136 of the
Constitution inasmuch as it was still open to the petitioners to prove
their innocence before the Magistrate, suffice it to say that in the
instant case if the petitioners are compelled to face prosecution in
spite of the finding that the orders directing complaint to be filed
against them were illegal it would obviously cause prejudice to them.
Points (v), (vi) and (vii) are decided accordingly.”

It is clear from the above decisions that if it is established that the
proposed actions are not permissible involving infringement of Articles 14
and 21 of the Constitution, this Court is well within its power to pass
appropriate order in exercise of its jurisdiction under Articles 32 and 142
of the Constitution. Further, if the petitioners are compelled to face the
privilege proceedings before the Vidhan Sabha, it would cause prejudice to
them. Further, if the petitioners are compelled to face the privilege
motion in spite of the fact that no proceeding was initiated against
Hon’ble Speaker or Members of the House but only relating to the officers
in respect of contractual matters, if urgent intervention is not sought for
by exercising extraordinary jurisdiction, undoubtedly, it would cause
prejudice to the petitioners.

30) Accordingly, we reject the preliminary objection raised by the
counsel for Respondent No.4 and hold that writ petition under Article 32 is
maintainable.

31) With the above factual background and the relevant statutory
provisions, let us examine the rival submissions.

32) Now, we will consider the contentions raised by Mr. Venugopal. As
mentioned earlier, Petitioner No. 1 is the Lokayukt appointed under the
provisions of the Lokayukta Act exercising powers and functions as provided
under the Act. In the course of the performance of the said functions, the
Lokayukt Organization received a complaint regarding certain irregularities
in the award of contracts. Petitioner Nos. 1 and 2, therefore, conducted
preliminary inquiry in the matter and on finding that a prima facie case
under the Prevention of Corruption Act was made out, the matter was
referred to the SPE established under the provisions of the M.P. Special
Police Establishment Act, 1947 to be dealt with further, and thereafter, a
case was registered by the said Establishment under the provisions of the
Prevention of Corruption Act, 1988.

33) Article 194(3) of the Constitution provides for privileges of the
Legislative Assembly and its members which reads as under:

“194. Powers, privileges, etc, of the House of Legislatures and of the
members and committees thereof

(1)  ***

(2)  ***

(3) In other respects, the powers, privileges and immunities of a
House of the Legislature of a State, and of the members and
the committees of a House of such Legislature, shall be such as may
from time to time be defined by the Legislature by law, and, until so
defined, shall be those of that House and of its members and
committees immediately before the coming into force of Section 26 of
the Constitution forty fourth Amendment Act, 1978.”

 

34) Article 194 is similar to Article 105 of the Constitution, which
provides for the privileges of Parliament and its Members. The said
Articles provide that the privileges enjoyed by the legislature shall be
such as may from time to time be defined by the legislature by law. It is
relevant to mention that any law made by the Parliament or the legislature
is subject to the discipline contained in Part III of the Constitution.
The privileges have not been defined but the above Article provides that
until the same are so defined (i.e. by the legislature by law), they shall
be those which the House or its members and committees enjoyed immediately
before the coming into force of Section 26 of the Constitution Forty-fourth
Amendment Act, 1978.

35) As per Chapter XI of the ‘Practice and Procedure of Parliament’
(Fifth edition), by M.N. Kaul and S.L. Shakdher in interpreting
parliamentary privileges at Page 211 observed:

“…regard must be had to the general principle that the privileges of
Parliament are granted to members in order that they may be able to
perform their duties in Parliament without let or hindrance. They
apply to individual members only insofar as they are necessary in
order that the House may freely perform its functions. They do not
discharge the member from the obligations to society which apply to
him as much and perhaps more closely in that capacity, as they apply
to other subjects. Privileges of Parliament do not place a Member of
parliament on a footing different from that of an ordinary citizen in
the matter of the application of laws unless there are good and
sufficient reasons in the interest of Parliament itself to do so.

The fundamental principle is that all citizens, including
members of Parliament, have to be treated equally in the eye of the
law. Unless so specified in the Constitution or in any law, a member
of Parliament cannot claim any privileges higher than those enjoyed by
any ordinary citizen in the matter of the application of law.”

 

36) It is clear that in the matter of the application of laws,
particularly, the provisions of the Lokayukt Act and the Prevention of
Corruption Act, 1988, insofar as the jurisdiction of the Lokayukt or the
Madhya Pradesh Special Establishment is concerned, all public servants
except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan
Sabha for the purposes of the Lokayukt Act fall in the same category and
cannot claim any privilege more than an ordinary citizen to whom the
provisions of the said Acts apply. In other words, the privileges are
available only insofar as they are necessary in order that the House may
freely perform its functions but do not extend to the activities undertaken
outside the House on which the legislative provisions would apply without
any differentiations. In view of the above, we reject the contra argument
made by Mr. C.D. Singh.

37) As rightly submitted by Mr. K.K. Venugopal, in India, there is rule
of law and not of men and, thus, there is primacy of the laws enacted by
the legislature which do not discriminate between persons to whom such laws
would apply. The laws would apply to all such persons unless the law
itself makes an exception on a valid classification. No individual can
claim privilege against the application of laws and for liabilities
fastened on commission of a prohibited Act.

38) In respect of the scope of the privileges enjoyed by the Members, the
then Speaker Mavalankar, while addressing the conference of the Presiding
Officers at Rajkot, on 03.01.1955, observed:

“The simply reply to this is that those privileges which are extended
by the Constitution to the legislature, its members, etc. are equated
with the privileges of the House of Commons in England. It has to be
noted here that the House of Commons does not allow the creation of
any privileges; and only such privileges are recognized as have
existed by long time custom.”

39) The scope of the privileges enjoyed depends upon the need for
privileges, i.e., why they have been provided for. The basic premise for
the privileges enjoyed by the members is to allow them to perform their
functions as members and no hindrance is caused to the functioning of the
House. Committee of Privileges of the Tenth Lok Sabha, noted the main
arguments that have been advanced in favour of codification, some of which
are as follows:

“(i) Parliamentary privileges are intended to be enjoyed on behalf of
the people, in their interests and not against the people opposed to
their interests;

*** *** ***

(iii) the concept of privileges for any class of people is
anarchronistic in a democratic society and, therefore, if any, these
privileges should be the barest minimum – only those necessary for
functional purposes – and invariably defined in clear and precise
terms;

(iv) sovereignty of Parliament has increasingly become a myth and a
fallacy for, sovereignty, if any, vests only in the people of India
who exercise it at the time of general elections to the Lok Sabha and
to the State Assemblies;

(v) in a system wedded to freedom and democracy – rule of law,
rights of the individual, independent judiciary and constitutional
government – it is only fair that the fundamental rights of the
citizens enshrined in the Constitution should have primacy over any
privileges or special rights of any class of people, including the
elected legislators, and that all such claims should be subject to
judicial scrutiny, for situations may arise where the rights of the
people may have to be protected even against the Parliament or against
captive or capricious parliamentary majorities of the moment;

(vi) the Constitution specifically envisaged privileges of the Houses
of parliament and State Legislatures and their members and committees
being defined by law by the respective legislatures and as such the
Constitution-makers definitely intended these privileges being subject
to the fundamental rights, provisions of the Constitution and the
jurisdiction of the courts;

*** *** ***

(viii) in any case, there is no question of any fresh privileges
being added inasmuch as (a) under the Constitution, even at present,
parliamentary privileges in India continue in actual practice to be
governed by the precedents of the House of Commons as they existed on
the day our Constitution came into force; and (b) in the House of
Commons itself, creation of new privileges is not allowed.”

40) The Committee also noted the main arguments against codification.
Argument no. (vii) is as under:

“(vii) The basic law that all citizens should be treated equally
before the law holds good in the case of members of Parliament as
well. They have the same rights and liberties as ordinary citizens
except when they perform their duties in the Parliament. The
privileges, therefore, do not, in any way, exempt members from their
normal obligation to society which apply to them as much and, perhaps,
more closely in that as they apply to others.”

41) It is clear that the basic concept is that the privileges are those
rights without which the House cannot perform its legislative functions.
They do not exempt the Members from their obligations under any statute
which continue to apply to them like any other law applicable to ordinary
citizens. Thus, enquiry or investigation into an allegation of corruption
against some officers of the Legislative Assembly cannot be said to
interfere with the legislative functions of the Assembly. No one enjoys
any privilege against criminal prosecution.

42) According to Erskine May, the privilege of freedom from arrest has
never been allowed to interfere with the administration of criminal justice
or emergency legislation. Thus, in any case, there cannot be any privilege
against conduct of investigation for a criminal offence. There is a
provision that in case a member is arrested or detained, the House ought to
be informed about the same.

43) With regard to “Statutory detention”, it has been stated, thus:

“The detention of a member under Regulation 18B of the Defence
(General), Regulation 1939, made under the Emergency Powers (Defence)
Acts 1939 and 1940, led to the committee of privileges being directed
to consider whether such detention constituted a breach of Privilege
of the House; the committee reported that there was no breach of
privilege involved. In the case of a member deported from Northern
Rhodesia for non-compliance with an order declaring him to be
prohibited immigrant, the speaker held that there was no prima-facie
case of breach of privilege.

The detention of members in Ireland in 1918 and 1922 under the Defence
of the Realm Regulations and the Civil Authorities (Special Powers)
Act, the speaker having been informed by respectively the Chief
Secretary of the Lord Lieutenant and the secretary to the Northern
Ireland Cabinet, was communicated by him to the House.”

44) The committee for Privileges of the Lords has considered the effect
of the powers of detention under the Mental Health Act, 1983 on the
privileges of freedom from arrest referred to in Standing Order No. 79 that
‘no Lord of Parliament is to be imprisoned or restrained without sentence
or order of the House unless upon a criminal charge or refusing to give
security for the peace’. The Committee accepted the advice of Lord Diplock
and other Law Lords that the provisions of the statute would prevail
against any existing privilege of Parliament or of peerage.

45) In Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha and Others, (2007) 3
SCC 184, this Court observed:

“71. In U.P. Assembly case (Special Reference No. 1 of 1964), while
dealing with questions relating to powers, privileges and immunities
of the State Legislatures, it was observed as under:
“70. … Parliamentary privilege, according to May, is the sum of the
peculiar rights enjoyed by each House collectively as a constituent
part of the High Court of Parliament, and by Members of each House
individually, without which they could not discharge their
functions, and which exceed those possessed by other bodies or
individuals. Thus, privilege, though part of the law of the land,
is to a certain extent an exemption from the ordinary law. The
particular privileges of the House of Commons have been defined as
‘the sum of the fundamental rights of the House and of its
individual Members as against the prerogatives of the Crown, the
authority of the ordinary courts of law and the special rights
of the House of Lords’.
… …. The privileges of Parliament are rights which are ‘absolutely
necessary for the due execution of its powers’. They are enjoyed by
individual Members, because the House cannot perform its functions
without unimpeded use of the services of its Members; and by each
House for the protection of its Members and the vindication of its
own authority and dignity (May’s Parliamentary Practice, pp. 42-
43).”
The privilege of freedom from arrest has never been allowed to
interfere with the administration of criminal justice or emergency
legislation.
87. In U.P. Assembly case (Special Reference No. 1 of 1964) it was
settled by this Court that a broad claim that all the powers enjoyed
by the House of Commons at the commencement of the Constitution of
India vest in an Indian Legislature cannot be accepted in its entirety
because there are some powers which cannot obviously be so claimed. In
this context, the following observations appearing at SCR p. 448 of
the judgment should suffice: (AIR p. 764, para 45)
“Take the privilege of freedom of access which is exercised by the
House of Commons as a body and through its Speaker ‘to have at all
times the right to petition, counsel, or remonstrate with their
Sovereign through their chosen representative and have a favourable
construction placed on his words was justly regarded by the Commons
as fundamental privilege’ [Sir Erskine May’s Parliamentary
Practice, (16th Edn.), p. 86]. It is hardly necessary to point out
that the House cannot claim this privilege. Similarly, the
privilege to pass acts of attainder and impeachments cannot be
claimed by the House. The House of Commons also claims the
privilege in regard to its own Constitution. This privilege is
expressed in three ways, first by the order of new writs to fill
vacancies that arise in the Commons in the course of a Parliament;
secondly, by the trial of controverted elections; and thirdly, by
determining the qualifications of its members in cases of doubt
(May’s Parliamentary Practice, p. 175). This privilege again,
admittedly, cannot be claimed by the House. Therefore, it would not
be correct to say that all powers and privileges which were
possessed by the House of Commons at the relevant time can be
claimed by the House.”
195. The debate on the subject took the learned counsel to the
interpretation and exposition of law of Parliament as is found in the
maxim lex et consuetudo parliamenti as the very existence of a
parliamentary privilege is a substantive issue of parliamentary law
and not a question of mere procedure and practice.”

 

46) In A. Kunjan Nadar vs. The State, AIR 1955 Travancore-Cochin 154, the
High Court while dealing with the scope of privileges under Article 194(3)
of the Constitution held as under:-

“(3) Article 194(3) deals with the powers, privileges and immunities
of the Legislature and their members in Part A states and Article 238
makes those powers, privileges and immunities available to
legislatures and its members in the Part B states as well. Article
194(3) deals with the privileges and immunities available to the
petitioner in a matter like this and they are according to that clause
“such as may time to time be defined by the legislature by law” and
until so defined, those of a member of the House of Commons of the
Parliament of the United Kingdom at the commencement of the
constitution.

(4) As stated before, there is no statutory provision granting the
privilege or immunity invoked by the petitioner and it is clear from
May’s Parliamentary Practice 15th Edn. 1950, p. 78 that “the privilege
from freedom from arrest is not claimed in respect of criminal
offences or statutory detention” and that the said freedom is limited
to civil clauses, and has not been allowed to interfere with the
administration of criminal justice or emergency legislation.

Xxxx xxxx xxxx

(8) …… So long as the detention is legal – and in this case there is
no dispute about its legality – the danger of the petitioner losing
his seat or the certainty of losing his daily allowance cannot
possibly form the foundation for relief against the normal or possible
consequences of such detention.”

47) In Dasaratha Deb case (1952), the Committee of Privileges-Parliament
Secretariat Publication, July 1952, inter alia, held that the arrest of a
Member of Parliament in the course of administration of criminal justice
did not constitute a breach of privilege of the House.

48) On 24.12.1969, a question of privilege was raised in the Lok Sabha
regarding arrests of some members while they were stated to be on their way
to attend the House. The Chair ruled that since the members were arrested
under the provisions of the Indian Penal Code and had pleaded guilty, no
question of privilege was involved.

49) In order to constitute a breach of privilege, however, a libel upon a
Member of Parliament must concern his character or conduct in his capacity
as a member of the House and must be “based on matters arising in the
actual transaction of the business of the House.” Reflections upon members
otherwise than in their capacity as members do not, therefore, involve any
breach of privilege or contempt of the House. Similarly, speeches or
writings containing vague charges against members of criticizing their
parliamentary conduct in a strong language, particularly, in the heat of a
public controversy, without, however, imputing any mala fides were not
treated by the House as a contempt or breach of privilege.

50) Similarly, the privilege against assault or molestation is available
to a member only when he is obstructed or in any way molested while
discharging his duties as a Member of the Parliament. In cases when
members were assaulted while they were not performing any parliamentary
duty it was held that no breach of privilege or contempt of the House had
been committed.

51) Successive Speakers have, however, held that an assault on or
misbehaviour with a member unconnected with his parliamentary work or mere
discourtesy by the police officers are not matters of privilege and such
complaints should be referred by members to the Ministers directly.

52) 45th Report of the Committee of Privileges of the Rajya Sabha dated
30th November, 2000 stated as under:

“6. The issue for examination before the Committee is whether CRPF
personnel posted at Raj Bhawan in Chennai committed a breach of
privilege available to Members of Parliament by preventing Shri Muthu
Mani from meeting the Governor in connection with presentation of a
memorandum.

7. The Committee notes that privileges are available to Member of
Parliament so that they can perform their parliamentary duties without
let or hindrance. Shri Muthu Mani had gone to the residence of
Governor for presentation of a memorandum in connection with party
activities. Before Shri Muthu Mani reached there, two delegations of
his party had been allowed to meet the Governor. It appears that due
to security related administrative reasons the entry of another
delegation of which Shri Muthu Mani was a Member, was denied by the
Police officers. Since Shri Muthu Mani was present in connection with
the programme of his political party, apparently along with other
party workers, it cannot be said that he was in any way performing a
parliamentary duty. As such preventing his entry by lawful means
cannot be deemed to constitute a breach of his parliamentary
privilege.”

53) Now, with regard to the contention of Mr. Venugopal, viz., about the
privileges available to the Assembly and its Members, in case of arrest of
employees of the Legislature Secretariat within the precincts of the House,
the Speaker of the Kerala Legislative Assembly, disallowing the question of
privilege, ruled that the prohibition against making arrest, without
obtaining the permission of the Speaker, from the precincts of the House is
applicable only to the members of the Assembly. He observed that it is not
possible, nor is it desirable to extend this privilege to persons other
than the members, since it would have the effect of putting unnecessary
restrictions and impediments in the due process of law.

54) The officers working under the office of the Speaker are also public
servants within the meaning of Section 2(g) of the Lokayukt Act and within
the meaning of Section 2 (c) of the Prevention of Corruption Act, 1988 and,
therefore, the Lokayukt and his officers are entitled and duty bound to
make inquiry and investigation into the allegations made in any complaint
filed before them.

55) The law applies equally and there is no privilege which prohibits
action of registration of a case by an authority that has been empowered by
the legislature to investigate the cases relating to corruption and bring
the offenders to book. Simply because the officers happen to belong to the
office of the Hon’ble Speaker of the Legislative Assembly, the provisions
of the Lokayukt Act do not cease to apply to them. The law does not make
any differentiation and applies to all with equal vigour. As such, the
initiation of action does not and cannot amount to a breach of privilege of
the Legislative Assembly, which has itself conferred powers in the form of
a statute to eradicate the menace of corruption. It is, thus, clear that,
no privilege is available to the Legislative Assembly to give immunity to
them against the operation of laws.

56) In the present matter, the petitioners have not made any inquiry even
against the members of the Legislative Assembly or the Speaker or about
their conduct and, therefore, the complaints made against the petitioners
by some of the members of the Legislative Assembly were completely uncalled
for, illegal and unconstitutional. The Speaker has no jurisdiction to
entertain any such complaint, which is not even maintainable.

57) Thus, it is amply clear that the Assembly does not enjoy any
privilege of a nature that may have the effect of restraining any inquiry
or investigation against the Secretary or the Deputy Secretary of the
Legislative Assembly.

58) Thus, from the above, it is clear that neither did the House of
Commons enjoy any privilege, at the time of the commencement of the
Constitution, of a nature that may have the effect of restraining any
inquiry or investigation against the Secretary or the Deputy Secretary of
the Legislative Assembly or for that matter against the member of the
Legislative Assembly or a minister in the executive government nor does the
Parliament or the Legislative Assembly of the State or its members. The
laws apply equally and there is no privilege which prohibits action of
registration of a case by an authority which has been empowered by the
legislature to investigate the cases. Simply because the officers belong
to the office of the Hon’ble Speaker of the Legislative Assembly, the
provisions of the Act do not cease to apply to them. The law does not make
any differentiation and applies to all with equal vigour. As such, the
initiation of action does not and cannot amount to a breach of privilege of
the Legislative Assembly, which has itself conferred powers in the form of
a Statute to eradicate the menace of corruption.

59) The petitioners cannot, while acting under the said statute, be said
to have lowered the dignity of the very Assembly which has conferred the
power upon the petitioners. The authority to act has been conferred upon
the petitioners under the Act by the Legislative Assembly itself and,
therefore, the action taken by the petitioners under the said Act cannot
constitute a breach of privilege of that Legislative Assembly.

60) By carrying out investigation on a complaint received, the
petitioners merely performed their statutory duty and did not in any way
affect the privileges which were being enjoyed by the Assembly and its
members. The action of the petitioners did not interfere in the working of
the House and as such there are no grounds for issuing a notice for the
breach of Privilege of the Legislative Assembly.

61) Also, in terms of the provisions of Section 11(2) of the Lokayukt
Act, any proceeding before the Lokayukt shall be deemed to be a judicial
proceeding within the meaning of Sections 193 and 228 of the Indian Penal
Code and as per Section 11(3), the Lokayukt is deemed to be a court within
the meaning of Contempt of Courts Act, 1971. The petitioners have merely
made inquiry within the scope of the provisions of the Act and have not
done anything against the Speaker personally. The officers working under
the office of the Speaker are also public servants within the meaning of
Section 2(g) of the Lokayukt Act and, therefore, the Lokayukt and his
officers were entitled and duty bound to carry out investigation and
inquiry into the allegations made in the complaint filed before them and
merely because the petitioners, after scrutinizing the relevant records,
found the allegations prima facie proved, justifying detailed investigation
by the Special Police Establishment under the Prevention of Corruption Act,
and the performance of duty by the petitioners in no way affects any of the
privileges even remotely enjoyed by the Assembly or its Members.

62) In the present matter, the petitioners have not made any inquiry
against any member of the Legislative Assembly or the Speaker or about
their conduct and, therefore, the complaints made against the petitioners
by some of the members of Legislative Assembly were completely uncalled
for, illegal and unconstitutional.

63) Further, the allegations made in the complaint show that while
dealing with the first complaint (E.R. 127/05), the Lokayukt found that
there was no material to proceed further and closed that matter since the
allegations alleged were not established. While inquiring into the second
complaint since the Lokayukt found that the allegations made in the
complaint were prima facie proved, SPE was directed to proceed further in
accordance with law.

64) On behalf of the petitioners, it is pointed out that the facts and
circumstances in the present matter show that complaints have been filed by
the Members not in their interest but for the benefit of the persons
involved who all are public servants. It is also pointed out that the
action of breach of privilege has been instituted against the petitioners
since the officers, against whom the investigation has been launched,
belong to the Vidhan Sabha Secretariat.

65) We are of the view that the action being investigated by the
petitioners has nothing to do with the proceedings of the House and as such
the said action cannot constitute any breach of privilege of the House or
its members.

66) It is made clear that privileges are available only insofar as they
are necessary in order that House may freely perform its functions. For
the application of laws, particularly, the provisions of the Lokayukt Act,
and the Prevention of Corruption Act, 1988, the jurisdiction of the
Lokayukt or the Madhya Pradesh Special Police Establishment is for all
public servants (except the Speaker and the Deputy Speaker of the Madhya
Pradesh Vidhan Sabha for the purposes of the Lokayukt Act) and no privilege
is available to the officials and, in any case, they cannot claim any
privilege more than an ordinary citizen to whom the provisions of the said
Acts apply. Privileges do not extend to the activities undertaken outside
the House on which the legislative provisions would apply without any
differentiation.

67) In the present case, the action taken by the petitioners is within
the powers conferred under the above statutes and, therefore, the action
taken by the petitioners is legal. Further, initiation of action for which
the petitioners are legally empowered, cannot constitute breach of any
privilege.

68) Under the provisions of Section 39(1)(iii) of the Code of Criminal
Procedure, 1973, every person who is aware of the commission of an offence
under the Prevention of Corruption Act is duty bound to give an
information available with him to the police. In other words, every
citizen who has knowledge of the commission of a cognizable offence has a
duty to lay information before the police and to cooperate with the
investigating officer who is enjoined to collect the evidence.

69) In the light of the above discussion and conclusion, the impugned
letters/notices are quashed and the writ petition is allowed as prayed for.
No order as to costs.

 
……….…………………………CJI.
(P. SATHASIVAM)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
………….…………………………J.
(RANJAN GOGOI)

 

 

 

………….…………………………J.
(SHIVA KIRTI SINGH)

 

NEW DELHI;
FEBRUARY 25, 2014.
———————–
53

 

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