O.P Garg, J.:— Kunwar Pal Singh Rathi claiming himself to be a media person has brought, in Public Interest, the petition under Art. 226 of the Constitution of India and has prayed for the following reliefs:

“(i) issue a writ, order or direction in the nature of mandamus directing a thorough investigation in the ‘Ambedkar Park’ project through an independent investigating agency on the basis of the prima facie offences disclosed in the report dated 17-5-1999 (Annexure 1 to this writ petition) of the Controller and Auditor General of India against the High profile personalities of the State as per the procedure of investigation and submission of charge sheet under the Court monitoring laid down by the Hon'ble Supreme Court in the case of Vineet Narain v. Union of India (1998) 1 SCC 226 : (AIR 1985 SC 889) and in the case of Union of India v. S.K Modi (1997) 4 SCC 770 : AIR 1997 SC 1672

In case the State Police has proceeded with some investigation in the ‘Ambedkar Park’ project then further investigation be ordered by some independent investigation agency under Section 173(8) of the Criminal Procedure Code.

(ii) Issue any other suitable writ, order or direction to any agency or authority to ensure those who have subverted the Rule of Law in the execution of the yet incomplete ‘Ambedkar Park’ project be punished so that such subversion of faith of public by those in high public places may not be repeated as the report of the C.A dated 17-5-1999 discloses.

(iii) Award cost to the petition and fee of the counsel's to the petitioner.”

2. The abovementioned reliefs have been formulated on behalf of the petitioner on the basis of the decisions of the apex Court in Union of India v. Sushil Kumar Modi (1997) 4 SCC 770 : (AIR 1997 SC 1672) and Vineet Narain v. Union of India (1998) 1 SCC 226 : AIR 1998 SC 88. The springboard to maintain the present petition is the report of the Comptroller and Auditor General of India (for short ‘C.A.G’) dated 17-5-1999 submitted to the Governor of U.P to be made and the report of C.A.G was submitted in the wake of the following facts.

3. With the twin-objectives of attracting national and international tourists and highlighting, propagating and disseminating the ideals and philosopy of Dr. Bhim Rao Ambedkar, Government of Uttar Pradesh decided in August, 1995 to build a national monument depicting his distinct personality, life events, thoughts and relentless efforts for the upliftment of the oppressed classes of the society. The monument known as ‘Ambedkar Sthal’ with a park around the Sthal was originally conceived to be constructed at 28 acres of land in Vipin Khand of Gomti Nagar, Lucknow. The project was known as ‘Ambedkar Udyan Project’ (hereinafter referred to as the project). The foundation stone of the project was laid on the Independence day, i.e 15th August, 1995. The State Government decided to engage an architect/designer of national/international repute to develop a concept of the project and to prepare detailed desings, etc., for the project. On the basis of concept plan presented to the then Chief Minister in 1995, Sri Satish Gujaral, a renowed architect was finally selected and the plan was accepted for implementation. Before the work on the project could start, the Government headed by Ms. Mayawati fell and President's Rule was imposed in October, 1995. The project virtually remained standstill and it gained momentum only when Ms. Mayawati again became Chief Minister on 23rd March, 1997. She gave instructions for raking up the project on top priority basis with a view to complete it expenditiously; to ensure tying up of various requisite inputs for proceeding with the project on a war footing, she immediately within two days of the assumption of office covnened a meeting of high level officers on 25-3-1997 in which several decisions were taken so that the project proceeds on an unprecedented fast pace and the target period for completion was fixed as four months. This meeting was attended by Principal Secretary to the Chief Minister, Principal Secretaries of Public Wroks Energy, Housing, Finance, Urban Development, Horticulture and Cultural Departments as well as Commissioner Lucknow Division, Vice Chairman, Lucknow Development Authority, District Magistrate, Special Secretary. Joint Secretaries, Chief Engineers Public Works Department, Lucknow Development Authority, Nagar Nigam besides Secretary Lucknow Development Authority and Additional Mukhya Nagar Adhikari, Nagar Nigam (Vide C.A 1 to the counter affidavit). The original concept plan was revised in the said meeting to give a bigger and higher dimension to the Ambedkar Sthal than what was proposed earlier in the year 1995. In April 1997, it was decided to develop the adjoining area of 15.40 area as ‘Jan Subhidha Prasar’ and for ‘construction of VVIP Guest House’. Since the entire project was sought to be completed within a time frame of four months, the Nodal Agency, namely Lucknow Development Authority decided to bifurcate the project in two parts ‘Ambedkar Sthal’ and ‘Ambedkar Udyan’. The work under Ambedkar Sthal comprising the main structure of the project was entrusted to U.P Rajkiya Nirman while the work of Ambedkar Udyan was undertaken by the Lucknow Development Authority itself.

4. Since the project was the brain child of Ms. Mayawati, she had taken personal interest in planning, designing, implementation and above all monitering the progress of the project and had paid numerous visits to the site. During these visits, she had reviewed the progress of work quality of work and took several decisions about the various aspects of the project including concept, designing and specifications, which were taken note of and acted upon. The verbal instructions resulted in continuous enlargement of the scope of work and corresponding increase in terms of cost. The Cabinet — the highest decision making body of the State Government had deliberated upon the detailed progress of the work, its estimated cost, the highly ambitious time schedule and on 26th June, 1997, it put its seal of approval for the execution of the aforesaid project and accorded high priority and importance as desired by the Chief Minister. Taking note of the emotional attachment and the close association of Ms. Mayawati, in the speedy implementation of the project from the conceptual stage, the Cabinet had, on 24-7-1997 formally authorised her to supervise all constructional activities at the Sthal and Udyan and the concerned departments were directed to ensure compliance. The work having started in the last week of March, 1997, continued up to Setpember 1997 and by that time, the Ambedkar Sthal component was about 40% complete and other components (Udyan and Guest House) were 30% complete. Because of enormous quantities or work and complexities of the design structure the initial time limit of four months was enlarged to eight months.

5. As per novel arrangement, ever arrived at for the first time in any democracy, the office of Chief Minister was to rotate every six months. Accordingly, on completion of her initial term of six months, Ms. Mayawati had to demit the office on 21-9-1997 and a BJP-led coalition Government under the Chief Ministership of Sri Kalyan Singh was formed. With the change of guard, the project received a set back. Perhaps by way of abundant precaution, the new Government asked the C.A.G in Nov. 1997 to carry out special audit of the project to look into its various aspects. Specially constituted teams of officers and officials of CAG carried out a detailed and thorough scrutiny of the records of concerned departments and agencies and had also carried out several site inspections with technical experts. Special report on the results of the special audit formed part of the CAG report dated 17-5-1999 for the Financial Year 1997-1998 on the financial affairs of U.P Government submitted to the Governor, U.P under Art. 151 of the Constitution of India. The relevant volume of the report Volume II covering the Ambedkar Park project and the Chief Minister's discretionary fund is Annexure 1 to the writ petition.

6. Startling facts with regard to the financial irregularities violation of rules and wsateful expenditure came to be revealed in the different paragraphs of the report of the CAG. The main audit objections which have found a place in the report of the C.A.G are summarized as below:

(a) Originally the State Government had mooted out a project for bringing into existence Indira Gandhi Prathisthan. This project, inter alia, envisaged arrangement for international meetings entertainment, tourist centre, heart centre, 15 acres for park, exhibition and 200 rooms five star hotel. This project was abandoned due to financial crisis which the State Government, at the relevant time, was facing, Ignoring the expenditure of Rs. 7.85 crores incurred in Indira Gandhi Prathisthan, Ambedkar Park project of much higher cost and dimension was piloted after withdrawing the money from the State Contingency Fund which was not permissible.

(b) Manoranjan Udyan Project merged into Ambedkar Udyan Pariyojna and the impact of this take over has been that a substantial expenditure of Rs. 47.26 lac came to be buried due to mud filling.

(c) On account of repeated expansion of Ambedkar Project, cost of the project increased 40 times from Rs. 2 crores to Rs. 83.42 and even after 24 months of commencement of the project and expenditure of Rs. 33.45 crores the concept and scope of work as well as the cost remained undefined.

(d) Certain works were added to the project by the Chief Minister without approval of the High Power Committee (for short ‘HPC’) in violation of the Government orders.

(e) The project was executed in a haphazard manner without clearly defining the plan and scope of work.

(f) There was complete lack of definition of the role of the nodal agency, i.e, the Lucknow Development Authority which had assumed the role of contractor and consumer both. It led to considerable misunderstanding.

(g) Selection of Architect Sri Sathish Gujaral was not transparent. He was selected disregading the open competion even competion even before the last date of receipt of proposals. The interest of the Government was not protected by entering into a contract with the Architect. The clause of payment which was already in favour of the Architect was further amended to favour him without any change in the scope of work with the result an additional payment of Rs. 84.50 lacs was made to him.

7. It was felt that the payment was made, on the one hand, for those works in which, as per supplementary conctract, the Architect had no role and, on the other, he did not make available the designs and services which were expected of him.

(h) A sum of Rs. 47.13 crores was released even prior to the administrative and technical approval out of which Rs. 33.45 crores had been spent. In order to avoid its responsibility, the Expenditure Finance Committee (for short ‘EFC’) submitted the proposal to HPC which recommended the proposal on the day it was presented. Technical section attached to the HPC admitted that the proposal examination was ‘negligible. The plan was funded from the State Contigency Fund in an unjustified manner. Government approved a sum of Rs. 80.98 crores for the project (97% of the cost) from the State Contingency Fund. This was not permissible because the expenditure was neither ‘unforeseen’ nor it was of such ‘emergent nature’ that the public services would have suffered serious disorder, loss or harm. The Chief Secretary had admitted that the proposal of advance from State Contingency Fund was irregular but he recommended them. Despite adequate time, the proposals were not included in the forthcoming budget and thus it was kept outside the legislative scrutiny.

(i) The execution of the project commenced without technical approval. Even after seven moths of the approval of the project the technical approval therefor was wanting and Rs. 62.23 crores (76% of the approved cost) were spent on works in violation of rules. A very short time table was prescribed for the execution of work without giving any basis for it except that it was the wish of the Chief Minister who was emotionally attached with the project.

(j) On account of the execution of the work on war footing to achieve the time schedule, serious irregularities were committed inasmuch as, there was insufficient basis for short listing the contractors; impracticably short time for presentation of proposals; approval of high rates without any discussion or basis, unjustified payment of securities advances, unapproved expenditure of Rs. 64.17 lacs under miscellaneous head; without receiving the drawing of the construction work, expenditure on electrical head was done and due to inclusion of extraordinary amount of Rs. 697 per square meters for filling of Ganga sand in the project, additional provision of Rs. 4.92 lacs had to be made.

(k) Constuction of VVIP Guest House in an unjustified manner though there was VVIP Guest House at Mahatma Gandhi Marg, Lucknow, which was recently constructed and was sufficient to meet the requirement, inclusion of construction of the Guest House in the project was done without ascertaining the need and consequently, an amount of Rs. 17.47 crores was blocked in this unjustified venture, inasmuch as, additional cost of Rs. 90.42 lacs was due to the big size of the suites, a sum of Rs. 62.88 lacs was spent on decoration; dispensable expenditure of Rs. 14.72 lacs in installation of excess number of Air Conditioners; excess provision of Rs. 37.92 lacs in approved estimates, futile expenditure of Rs. 2.06 crores in construction of Kukrail Nala; and additional cost due to execution of work on high cost (i) additional cost burden of 21.41 lacs in the purchase of woods on high rates; (ii) additional expenditure of Rs. 13 lacs in purchase of cement on higher rates (iii) additional expenditure of Rs. 17.70 lacs in execution of work through contractors and (iv) additional cost of Rs. 25.33 lacs in mud work.

(l) Irregularities with regard to allotment of work on higher rates, undue preference to contractors, selection of sculptors for supply of white marble elephant and eight red elephants without open competion procurement of statue of Dr. B.R Ambedkar waste on re-polishing of granite at the entrance including 11.50 lacs spent on inauguration of the project on eight occasions, other dispensable futile and avoidable expenditure in a little time including serious irregularities committed by the Lucknow Development Authority in the payment of lacs of rupees have further been pointed out.

8. The C.A.G further lamented that the project was launched at a time when the financial condition of the State was not only difficult but precarious. The balance sheet shows that the liability of the State was Rs. 11,502.19 crores more than its assets. In the last five years, i.e 1992-1993 to 1996-1997, the difference between the assets and liabilites was increasing and against 45% increase in the assets, the liabilities had increased to 75%. During this period, the financial deficit of Rs. 3710.95 crores has increased by 67% to Rs. 5956.20 crores. Revenue deficit in the percentage of financial deficit had increased from 28 to 58%. In the consolidated fund the pure deficit had come to Rs. 2263 crores from Rs. 1338.21 crores. There was thus an increase of 69% in deficit. The report of the CAG takes note of the fact that despite difficult financial position of the Government, an ambitious project of the estimated value of 88.94 crores was launched without considering the expertise and rationality of expenditure and the project was sought to be executed with undue haste. In conclusion, the special audit report reveals that public money to the tune of Rs. 34 crores 11 lacs was lost without any corresponding advantage.

9. Sri Yogendra, Narain, the then Chief Secretary, Government of Uttar Pradesh has filed a counter-affidavit. Subsequently, a supplementary counter-affidavit has been filed by his successor Sri Bhola Nath Tewari. The stand taken by the State is that the present writ petition at the instance of the petitioner is not maintainable as he has not come forward before this Court to vindicate the public interest, but to aggrandise himself by undue publicity and prom-nance. It is further stated that the report of the C.A.G which has not touched the question of any offence having been committed, cannot be made the basis of challenge to policy decision taken by the State Government, as in view of the provisions of Articles 151 and 194 of the Constitution of India, it is the constitutional entitlement, prerogative and privilege of the State Legislature to consider the report of the C.A.G It is for the State Legislature to take appropriate decision and pass appropriate resolution with respect to the report of the C.A.G The report of the C.A.G has been entrusted to the Public Accounts Committee (hereinafter called ‘the PAC’) which is deliberating on the point. According to the respondents, the State Legislature is the master of its own proceedings and since it is already seized of the report of the C.A.G and is considering the same in accordance with the procedure prescribed, this Court is not empowered to intervene in the matter of by-pass the constitutional procedure. On facts, it has been stated that there is no finding anywhere in the report of the C.A.G that a sum of Rs. 34.11 cror has been embezzled or misappropriated and, therefore, the question of issuing any direction of an investigation agency for making a roving enquiry does not arise.

10. Sri Siddhartha, learned counsel for the petitioner and Sri Rakesh Dwivedi, Senior Advocate assisted by Sri V.K Singh were heard at length on all aspects of the case.

11. Sri Siddhartha, learned counsel for the petiioner has seriously criticized the withdrawal of money for the project from the State Contingoncy Fund on the ground that the expenditure was neither or ‘unforeseen nature’ or of emergent character. Sri Rakesh Dwivedi pointed out that since the petitioner merely seeks a relief for investigation by C.B.I or any other agency on the strength of the report of C.A.G, it would not be desirable for this Court to examine whether the advancement of substantial fund from the State Contigency Fund at the initial stages for Ambedkar project was legally permissible or not. Since both the parties have canvassed the point at a considerable length and the arguments continued for days together, we feel inclined to avail of this opportunity to look at the nature, purpose and object of the Contingency Fund with a view to put the things straight. Establishment of ‘Contingency Fund’ (both for the Union and State) is contemplated in Art. 267 of the Constitution of India. The Fund has to be established by a law made either by the Parliament or the State Legislature. Clause (2) of Art. 267 which deals with the State lays down as under:

“The Legislature of a State may be law establish a Contingency Fund in the nature of an imprest to be entitled ‘the Contingency Fund of the State’ into which shall be paid from time to time such sums as may be determined by such law and said Fund shall be placed at the disposal of the Governor of the State to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure by the legislature of the State by law under Art. 205 or Art. 206.”

12. The object of the provision is to enable the State Legislature to make advances for the purposes of meeting unforeseen expenditures pending authorisation of such expenditure by State Legislature. Pursuant to this provision in the Constitution, the State Legislature of Uttar Pradesh has enacted U.P Contingency Fund Act, 1950 (U.P Act No. XIX of 1950). Section 5 makes mention of the purpose for which the Contingency Fund may be utilized. It reads as follows:

5. Purpose for which the Uttar Pradesh Contingency Fund may be utilized The fund shall be placed at the disposal of the Governor of Uttar Pradesh for meeting unforeseen expenditure of the State pending authorisation of such expenditure by the State Legislature of the State under appropriations made by law, and, immediately after the coming into operation of such law, an amount equal to the amount or amounts advanced by the Governor for the purpose aforesaid shall be deemed to have been placed to the credit of the Fund and the amount so transferred shall for all purpose be deemed to be a part of the Fund.”

13. Section 6 of authorized the State Government to make rules to carry out all or any one of the purposes of the Act. In exercise of the powers conferred under Section 6 of the Act, the Governor of U.P has made U.P Contingency Fund Rules, 1962 R. 3 (hereinafter referred to as ‘the Rules’) notified on 23-3-1962. The relevant provision with regard to the advances from the Contingency Fund is contained in Rule 3 which is being reproduced below:

“3. Advance from the Fund shall be made only to meet unforeseen expenditure of such services, the expenditure on which an authorised by the Annual Appropriation Act, is found to be insufficient or where a need has arisen during the current financial year for supplementary or additional new expenditure or expenditure on some new sercice or scheme, not contemplated in the annual financial statement for that year. The unforeseen expenditure to be sanctioned pending its authorization by the Legislature under appropriation made by law must be of such an emergent character that its postponement would either be not administratively possible or would involve serious inconvenience or serious loss or damages to public service.”

14. A plain reading of the above provision makes it clear that the advance from the Contingency Fund is hedged with the stipulation that the expenditure must be unforeseen in nature and must be of such an emergent character that its postponement would either be not administratively possible or would involve inconvenience or serious loss or damage to public service. Sri Dwivedi pointed out that the expression ‘unforeseen expenditure’ as used in Art. 267 is very wide and since it is not qualified, it would be unnecessary to import any restriction of any kind to limit such expenditure, to the events like cyclone, flood, earth-quake or epidemic whcih are the acts of God, i.e vismajor. According to Sri Dwivedi, unforeseen expenditures cannot be equated as vis major though it would certainly include expenditures incurred for refressal of injuries caused by such calamities. In the circumstances, he maintained that the expressed ‘unforeseen expenditure’ has to be understood in the light of the financial procedure as laid down by the Constitution and, so understood, it only means an expenditure in excess of that already authorised or expenditure with regard to a service not contemplated by the Annual Financial Statement, even where service is contemplated by Annual Financial statement, more money may be needed or more money may have been spent to that extent it would also be treated as ‘unforeseen expenditure’. As to what is urgency to advance the money from the Contingency Fund and unforeseen nature of the expenditure are the facts, according to Sri Dwivedi, which may be determined by the executive. According to him, in the instant case, an appropriate law has been passed by the legislature of Uttar Pradesh and the money has been recouped in the contingency, as contemplated by law. Hence, not only money advanced from the contingency fund was properly considered to be unforeseen expenditure, but the State Legislature has also accepted the view of the State Government while authorising State expenditure — Sri Dwivedi pointed out that the question has to be considered with reference to the past practice with regard to the advances made from the Contingency Funds. It was pointed out that advances from the Contingency Fund have been made for construction of roads, bridges, inspection houses and their repairs, money has also been advanced for expenditure on hospitals, schools and public buildings, including education projects, scholarship for student and godowns advances were also made for milk development project, Gorakhpur Planetarium, Ayodhya Sarju Ghat; Ayodhya Chaudaha Koshi Parikrama Marg, Ganga Snan, Gram Vikas Yojna, Agro Heritage and Beautification of Varanasi. Advances were also made from the State Contingency Fund for Mahatma Gandhi celebrations, for meeting the expenses incurred for buying cars, mobile phones and furnishing of offices, furnishing of the houses of Ministers, buying of Aeroplances and Helicopters etc., for assisting the Power Organisation, for construction of Court buildings, lawyers chamobers, installation of water coolers, computerization etc. A host of other expenditures were also cited where the advances were made from the State Contingency Fund as well as from the Chief Minister's discretionary fund. Sequel to the above submitted it was urged that the duly established Government of the State had taken a policy decision to set up a special monument to propogate the ideals and philosophy of Dr. Ambedkar who undoubtedly was the father of the Constitution. The need to establish a Guest House was felt by the then Chief Minister. The Cabinet, the highest executive policy decision making body, had approved the project. The time frame within which it was to be executed as well as other decisions were left at the personal supervision, charge and moniforing of the then Chief Minister. Consequently, the policy decision, howsoever misconceived it may be, cannot be made the subject matter of criticism before this Court and in any case, this Court would not sit in judgment over the policy decision taken by the State Government. It was pointed out that in view of the unique and unusal political arrangement between Bahujan Samaj Party and Bhartiya Janta Party, for power sharing, the then Chief Minister Ms. Mayawati had only six months at her disposal and imbued with a feeling that the project may be completed during her time, she rushed through it and instructed the various functionaries to complete the work as per her directions and so that requisite money is provided withdrawal from the Contingency Fund was justified. Wherever instructions or directions were given by the then Chief Minister had received the seal of approval from the Cabinet and as deposed by Sri Yogendra Narain, Chief Secretary in his counter affidavit, the entire, sum, which was released from the State Contingency Fund was recouped from the State of Consolidated Fund by getting an appropriation bill passed by the State Legislature. According to him, it (Ambedkar Park Project) was not an isolated case of using State Contingency Fund for funding such items of expenditures which were not provided in the budget but the fund is normally utilized taking into consideration the need items to be funded immediately because of the priority of the Government or various exigencies.

15. It appears that the advances from the State Contingency Fund are being made in a normal and routine manner without satisfying the twin conditions that the advances should be for an expenditure of unforeseen nature or of emergent character. The practice which is being adopted by successive Government may not be strictly in consonance with the letter and the spirit of law but the withdrawal and the expenditure are validated by the Appropriation Bills passed by the State Legislature from time to time. It is for the State Legislature to take an exception to the casual manner in which advances are being made from the State Contingency Fund in violation of the rules and the procedure prescribed but this Court would prefer to avoid, unless circumstances leave no other choice, interfering into the domain which belongs to the Legislature.

16. Now it is time to consider the question whether the report of the C.A.G by itself can legally be made the basis for the reliefs claimed in the petition. Sri Rakesh Dwivedi, learned counsel for the respondents took plains in taking us through the various provisions made in different countries with regard to the appointment, powers and functions pf the C.A.G and made a specific reference to a number of decisions, viz. 1924 AC 318, Auckland Harbour Board v. The King, 1982 (1) AER 129 Bromley London Borough Council v. Greater London Council; 1986 (1) AER 199 Nottinghamshire County Council v. Secretary of State for the Environment 1990 (3) AER 589, Hammersmith and Fulham Longon Borough Council v. Secretary of Staate for the Environment, 1991 (1) AER 545 Hazell v. Hammersmith and Fulham Lond Borough Council and 1977 (3) AER 444 Motzger v. Department of Health and Social Security (sic). He also addressed us on the historical retrospect of the office of the CAG in India. The various criterion and other prescriptions applicable in the matter of appointment and status of the C.A.G are equivalent to that of a Supreme Court Judge.

17. Undoubtedly, the C.A.G is a key figure in a system of Parliamentary control of finance. He is empowered to carry out examinations (known as ‘value for money audit’) into the economy, efficiency and effectiveness with which the departmental authorities or other bodies had used their resources in discharging their functions. It is his duty to see the sanctioned money had been used for the purposes for which it was inteneded. He is the final audit authority and is an impartial part of the machinery through, which the legislature enforces regularity and economy in the administration of public finance. His duty is not merely of audit but also exercising control over Government's spending. He is supposed to control the expenditures with reference to the well settled principles of administration of finance. The task of ensuring that the expenditure conforms to sanctions, is specifically placed in the hands of the C.A.G However, these vast powers do not entitle the C.A.G to question the merit of the policy objectives of any authority or body in respect of which an examination is carried out though the appropriate legislature may consider the merits or otherwise to take exception to the policy decision. It is true that the policy decision and its execution are notoriously difficult to disentangle. The reports of the C.A.G are subject to an annual debate though it is normally not a great event in the legislature.

18. According to Sri Dwivedi, C.A.G does not have any authority or power to comment upon the policy decision taken by the State Government in formulating a particular scheme or project which in its opinion is in public interest. He, however, agreed that the C.A.G has the authority to take into consideration the wasteful expenses, if any, committed in the implementation of the project, which takes birth as a result of the policy decision of the State Government. There is no doubt about the fact that the report of the C.A.G was submitted to the Governor of the State on 13-7-1999. Article 151(2) of the Constitution of India requires the Governor to cause the report to be laid down before the Legislature of the State. According to Rules of Procedure and Conduct of Business of U.P Legislative Assembly, 1958, the report submited by the C.A.G is to be placed before the Public Accounts Committee. This Committee scrutinized the report and examines relevant record witnesses etc. as it deems necessary and then presents its report to the Legislative Assembly. The Assembly then discusses the report and the Minister concerned explains the Government's point of view as well as action, which the Government proposes to take (Rule 216). Rule 229 of the Rules of Procedure and Conduct of Business in U.P Legislative Assembly deals with the constitution of the Committee. Rule 230 deals with the function of the committee. Clause (c) of sub-rule (2) of Rule 230 provides that it shall be the duty of the committee on public accounts to consider the report or the C.A.G in cases where the Governor may have required him to conduct audit of any receipts or to examination of the account of store and stocks.

19. Sri Siddharth pointed out that in spite of specific direction of this Court and the statements made by the Senior Advocate on behalf of the State, the P.A.C has not submitted its report. A complete reply to the submission of Sri Siddhartha is to be found in the counter affidavit of Sri Yogendra Narain, the then Chief Secretary. In paragraph 20 of the counter-affidavit, he has deposed that the report of the CAG for the Financial Year 1997-1998 which also covers the Ambedkar Park Project was tabled in the Legislative Assembly and the Legislative Council, on 15-7-1999, as per requirement of Art. 151(2) of the Constitution. The reconstituted PAC has been notified on 4-12-1999. The State Government has already directed the concerned departments on 20-7-1999 to submit their replies and comments on the points raised by the C.A.G In its report to the PAC. Subsequently, Shri Bhola Nath Tiwari, successor in office as Chief Secretary, filed a supplementary counter-affidavit and has deposed in paragraph 5 that under the prevalent practice, PAC holds about 12 sittings in a month, except, in an unavoidable circumstances, to examine matters relating to all the departments of the Government. As far as the present matter (Ambedkar Project report of the C.A.G) is concerned, a number of sittings of PAC were scheduled wholly for it on 27th and 28th July, 5th and 27th Sept. and 27th Nov. 2000. During these sittings the matter was taken up for thorough examination by PAC and issued deliberated in the meetings. It was further deposed that consideration the fact that the CAG report is very extensive, P.A.C is likely to take some more time on the subject. Sri Tiwari has further deposed that when the matter was taken up by this Court on 4-2-2000, it was informed by the Senior Advocate that the report of CAG is already engaging the attention of the PAC and upon bona fide belief it was stated that, the report was likely to be taken up for examination within a couple of months. The above facts indicate the PAC is alive to the situation that it has to submit its report after due security to the legislature according to rules.

20. In the light of the above facts, Sri Dwivedi urged that in view of Arts. 151 and 194 of the Constitution of India, it is the constitutional entitlement, prerogative, privilege of the Legislature of the State of consider the report of the C.A.G The report having been placed before the Legislature of the State, it is now for it to take decision and pass appropriate resolution with respect to the report of the C.A.G

21. Sri Rakesh Dwivedi urged that a line of demarcation between the powers of the legislature and the other authorities as well as that of the Courts is required to be maintained. The submission is sequel to the relationship of the legislature as well as the Courts. The legislature has traditionally claimed to be the sole and exclusive judge of its own privilege and of the extent of that privilege. The Courts of law accept the existence of privileges essential to the discharge of the functions of the two Houses. All the privileges required for the energetic discharge of the legislature's trust, have been conceded by the Court without a murmur or doubt. The Privy Council confirmed that the Courts will not allow any challenge to be made to what is said or done within the walls of a legislature in performance of its legislative functions and protection of its established privileges. The Courts, on the other hand, take the view that it is not for them to determine whether a parliamentary claim to privilege in a particular case falls within that area where what is claimed, is necessary to the discharge of parliamentary functions or internal to one or other of the Houses, in which case Parliamentary jurisdiction is exclusive, or whether it falls outside the area, especially if the rights of the third party are involved, where the Courts would expect to form their own judgments (See Erskine May's Parliamentary Practice, 22nd End. 1997, Chapter II).

22. In spite of the dualism of jurisdiction between the legislature and the Courts of law, the current measure of agreement on the respective spheres of the two Houses and the Courts has prevented the direct conflicts. Observance of judicial restraint is currently the mood and, therefore, the Courts of law have generally held that the control of each House over its own proceedings is absolute and not subject to judicial intervention, and the Courts will not interfere insofar as proceedings of the Houses are concerned. However, there are instances where Courts have intervened. For example, in the case of dismissal of council of Minister of U.P headed by Kalyan Singh in February, 1998, challenged before this Court in Writ Petition No. 7151 of 1998, Narendra Kumar Singh Gaur v. Union of India and the decision thereof on 23-2-1998 gave rise to intervention by the Apex Court. The Hon'ble Supreme Court directed testing of the confidence in the Government headed by Sri Kalyan Singh, on the floor of the House. In the instant case, the report of the C.A.G was presented before the Governor of the State under Article 151(2) of the Constitution of India and after the report was tabled and subsequently the report came to be considered by the P.A.C Both P.A.C and C.A.G are the creatures of the Constitution or the Statute and have specific roles to play. Both these institutions are supposed to be scrupulously non-partisans. The legislature has a right and the privilege to consider the report according to procedure prescribed.

23. Sri Siddhartha further pointed out that the experience shows that the reports of the C.A.G are generally shown scant respect or forgotten as they are shelved to gather dust and in any case, the PAC to which the report of C.A.G is entrusted for scrutiny seldom yields results and the matter is allowed to pend unattended to for a number of years. He urged that some time frame may be prescribed by this Court for scrutiny and submission of the report by the PAC before the State Legislature and its consideration by the Legislature till such time the necessary legislation on the point is introduced and brought into existence. The submission, though attractive by its simplicity, is unworkable in ultimate analysis. It is within the domain of legislative power to work out the modalities in this regard and adopt procedures for timely submission of Action Taken Reports (A.T.R) on C.A.G reports.

24. Judiciary, howsoever independent, has not been licensed to build up its own ‘ism’ or social philosophy. Taking initiative in the domain of other instrumentalities has an impact. I necessarily say it is always beneficial to the set up. In the case of State of Himachal Pradesh v. A Parent of Student of Medical College, Shimla, (1985) 3 SCC 169 : AIR 1985 SC 910, the Hon'ble Supreme Court considered the direction issued by a Division Bench of the High Court to the State Government about the initiation of legislation against ragging. In the context that the Court cannot usurp the executive functions, it was observed (at Pages 913-914):

“It is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular legislation. Of course, any member of the legislature can also Introduce legislation but the Court certainly cannot mandate the executive or any member of the legislature to initiate legislation, howsoever necessary or desirable, the Court may consider it to be. That is not a matter which is within the sphere of the functions and the duties allocated to the judiciary under the Constitution. If the executive is not carrying out any duty laid upon it by the Constitution. If the executive is not carrying out any duty laid upon it by the Constitution or the law, the Court can certainly require the executive to carry out such duty and this is precisely what the Court does when it entertains public interest litigation.”

25. It was further observed

“But at the same time, the Court cannot usurp the functions assigned to the executive and the legislature under the Constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or to assume to Itself a supervisory role over the law making activities of the executive and the legislature.”

26. The above verdict of the Apex Court specifically in unequivocal terms, explains the parameters of judicial functions. It might have in that sense deprecated the activism but shown consciousness to the scheme of allocation of business amongst the instrumentalities under the Constitution. Judicial restraint necessarily prevents to take up the Constitution to entertain individual ideas or to implement personified thoughts.

27. The petitioner, as said above, has founded the reliefs claimed by him in this writ petition on the two distinct decisions of the Apex Court, namely, Union of India v. Sushil Kumar Modi, 1997 (4) SCC 770 and Vineet Narain v. Union of India, 1998 (1) SCC 226 : (AIR 1998 SC 889). Sri Rakesh Dwivedi pointed out that the various observations made in the decisions aforesaid, are not attracted to the instant case and whatever has been laid down in the said two decisions, cannot be made the basis of ordering an investigation. Sushil Kumar Modi's case (supra) deals with the much talked about controversy pertaining to fodder scam of Bihar. In that case, the State of Bihar had itself lodged 40 First Information Reports pertaining to embezzlement of funds from the treasury by falsification of the accounts. The amount withdrawn from the treasury had not been sanctioned either by the legislature or the Government. On enquiries, it came to light that there had been no supply of fodder at all and that a large scale defalcation of public fund, fraudulent transaction and falsification of accounts to the tune of around Rs. 500 crores came to light in the Animal Husbandry Department of the State of Bihar. A public interest litigation was filed in Patna High Court with the allegation that the investigating agency was out to shield the officials and the concerned Ministers. A Bench of the Patna High Court has directed an investigation to be conducted by the C.B.I The High Court took upon itself the task of monitoring the investigation. Aggrieved, the State of Bihar went before the Apex Court and on its behalf it was argued that the High Court while exercising power under Article 226 should have kept in mind the limitation that without the consent of the appropriate State Government, no Investigating agency, other than the State Police, could investigate an offence committed in the State. It was further argued that the Limitation did not apply to the Apex Court exercising power under Article 142 to do complete Justice. The High Court was, therefore, it was submitted, not correct in law in directing the C.B.I to investigate the allegation of defalcation of fund, Large scale misappropriation, fabrication and destruction of record etc. The Apex Court examined the question whether it was a fit case for interference under Article 136 of the Constitution of India. It was observed that the exercise of power under Article 226 of the Constitution of India in a public interest litigation was not to give any advantage to a political party or group of people. It was also not to cast a slur on the State police. It was done to investigate corruption in public administration, misconduct by the bureaucrcy, fabrication of official records and misappropriation of public funds by an independent agency that would command public confidence. The Apex Court was of the opinion that the direction given by the High Court appeared to be just and proper and called for no real interference.

28. Sri Siddhartha pointed out that in Sushil Kumar Modi's case (supra), the Apex Court in paragraph 10 has clearly reiterated that the proceedings before the High Court, in that case, were somewhat similar to the proceedings in Vineet Narain v. Union of India, (1996) 2 SCC 199 : (AIR 1996 SC 3386) and the procedure required to be adopted by the High Court was to be on the same lines. The required guidance to the C.B.I and other government agencies as well as to the Court's monitoring such investigation is a available from the observations made in those cases. On the strength of the above observations, Sri Siddhartha submitted that this Court, under Article 226 of the Constitution of India, is empowered to monitor the investigation of the case after entrusting the same to C.B.I or any other investigating agency. Whatever has been said in Sushil Kumar Modi's case (supra) and in the case of State of Bihar v. Ranchi Samta Party ((1996) 3 SCC 682 : AIR 1996 SC 1515) is of no assistance to the petitioner for one simple reason that the controversy whether the High Court in exercise of its power under Article 226 of the Constitution could take the investigation away without the consent of the State Government from the State Police and entrust it to the C.B.I, was not finally decided and left open obviously for the reason that this question is the subject-matter of a reference by order dated 10-3-1989 pending consideration of a constitution Bench of five Hon'ble Judges of the Supreme Court (Writ Petition No. 531-36 of 1985). The present case has absolutely no similarity with the investigation of the various offences in the fodder scam in Bihar as in that case, the Government itself had lodged as many as 40 First Information Reports and the case as being investigated by the local police. The only controversy which was carried to the Apex Court was whether the High Court could in a Public Interest Litigation strip the local police of the power of investigation in preference to the investigation by the C.B.I Specific allegations in the form of accusation came to be made in the fodder scam case which culminated in lodging of the FIRs.

29. The other case which has been made the basis to claim the relief in the present petition, i.e, Vineet Narain v. Union of India 1998 (1) SCC 226 : (AIR 1998 SC 889) proceeds almost on a different footing. In that case, consequent upon arrest and interrogation of an official of a terrorist organization, raids were conducted by the CBI on the premises of Surendra Kumar Jain, his brothers relatives and businesses. Along with Indian and foreign currency, C.B.I seized two diaries and two note books in the premises. They contained detailed accounts of vast payments made to persons identified only by initials correspond to the officials of various high ranking politicians in power and out of power and of high ranking bureaucrats. Nothing having been done in the matter of investigation of Jains from the contents of their diaries, a number writ petitions were filed in public interest under Art. 32 of the Constitution of India. Disposing of the writ petitions, the apex Court observed that there are ample powers conferred by Art. 142 to make orders which have the effect of law by virtue of Art. 141 and there is mandate to all authorities to act in aid of the orders of the Supreme Court as provided under Art. 144 of the Constitution. The Apex Court noted that the above power has been recognised in a catena of decisions of the Apex Court and it can be exercised if need be by necessary directions to fill the vacuum. The legislature has to step in to cover the gap and the executive has to discharge its function. The further view expressed by the Apex Court was that every one against whom there is reasonable suspicion of committing crime has to be treated equally and similarly under the law as probity in public life is great significance. We have considered the various observations made by the Apex Court in the case of Vineet Narain v. Union of India (supra) and find ourselves reluctant to exercise powers which are vested in the Apex Court under Arts. 32, 141, 42 and 144 of the Constitution of India.

30. We have given thougtful consideration to the matter and are of the view that the constitutional procedure as indicated above, cannot be scuttled by this Court, particularly when the State Legislature is seized of the matter and is considering the report in accordance with the procedure prescribed through its Committee. Though the powers conferred on the Supreme Court by the Constitution (Art. 32 read with Art. 142 to made orders which have the effect of law by virtue of Art. 141 and there is mandate to all authorities to act in aid of the orders of the Supreme Court as provided under Art. 144) are ample to remedy the various defects and to ensure enforcement of the concept of equality, this Court would be chary to step-in to intervene in the matter as it would unnecessarily amount to impingement upon the Supreme Legislative powers of the State.

31. Serious allegations have been made by the petitioner against the civil servants and the political executive with regard to the misuse of power and mis-utilisation and defalcation of huge funds. Since the allegations are in the nature of complaint against the public officials we are of the view that there is nothing to prevent the petitioner to seek remedy before the Lokayukta constituted under the provisions of U.P Lokayukta and U.P lokayuktas Act, 1975 against the public servant within the meaning of S. 2(h) and (j) of the said Act.

32. Sri Rakesh Dwivedi maintained that the policy decision taken by the State Government to bring into existence the Ambedkar project with the necessary infrastructure within the time stipulated and which also received the approval of the Cabinet, i.e, Council of Ministers headed by the Chief Minister, cannot be faulted before this Court on any ground, even though the said policy decision may be termed as ill-conceived, inopportune, inappropriate and impracticable. In substance, the submission of Sri Dwivedi was that the power of judicial review is not to be exercised as an appeal against the policy decision of the executive and the Court cannot substitute its own wisdom for the simple reason that the Court is hardly equipped to do so and it would not be desirable either. Borrowing the phraseology used by the Apex Court in Tata Cellular v. Union Of India. (1994) 6 SCC 651 : (AIR 1996 SC 11) Sri Dwivedi was emphatic in making the submission that ‘it is not the function of a Judge to act as a super-board or with the zeal of a pedantic school master substituting its judgment for that of the administrator.’ On the same analogy, Sri Dwivedi criticized the report submitted by the C.A.G who according to him, was not competent to strike at the root of the policy decision taken by the Government of the day established by law. We are conscious of the fact that the C.A.G and, for that matter, this Court cannot take exception to the policy decision taken by the State Government, howsoever bad, indifferent, imprudent and wasteful, it may be. Therefore, we are not on merits of the policy decision taken by the Government to translate into reality the Ambedkar Project. It would, however, be appropriate to mention that the judicial power of review is exercised to reign in any unbridled executive functioning. As observed in Tata Cellular's case (supra), the restraint has the contemporary manifestation. One is the ambit of judicial interpretation and the other covers the scope of the Court's ability to quash an administrative decision on its merits. These restraints bear the hall-marks of judicial control over administrative action. Judicially review, therefore, is different from an appeal. While judicially reviewing an administrative decision, the duty of the Court is to confine itself to the question of legality. Its concern should be (a) whether a decision making authority exceeded its powers? (b) committed an error of law, (c) committed a breach of rule of the natural justice; (d) reached a decision which no reasonable tribunal would have reached or (e) abused its powers.

33. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. The Apex Court in Tata Cellular's case (supra) classified the grounds upon which an administrative action is subject to control by judicial review as under (at page 26):—

(i) Illegality: This means the decision maker must understand correctly the law that regulates his decision making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. The decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it.

(iii) Procedural impropriety:

The above are only the broad grounds but it does not rule out addition of further grounds in course of time.”

34. Referring to a number of English decisions in paragraph 77, the Apex Court observed that in all those cases, the test to be adopted is that the Court should “consider whether something has gone wrong of a nature and degree which requires its intervention.”

35. Sri Rakesh Dwivedi, learned counsel for the respondents took pains to clarify that the report of the C.A.G, nowhere mentions that public money has been squandered, defalcated, embezzled or misappropriated and since prima facie no offence is made out the forum of this court cannot be utilized for whitch-hunting, that is to say for indulging in a roving and fishing enquiry. Sri Dwivedi fortified his contention by the following observations made by the Apex Court in its decision dated 13th December, 1999 made in Civil Appeal No. 7231 of 1999 State of Karnataka v. Arun Kumar Agarwal ((2000) 1 SCC 210 : AIR 2000 SC 411).

“……….Law, in fact, is otherwise. The acts of persons will not be subject of criminal investigation unless a crime is reported to have been committed or reasonable suspicion thereto arises. On mere conjecture or surmises, as a flight of fancy that some crime might have been committed, somewhere, by some body, but the crime is not known, the persons involved in it or the place of crime unknown, cannot be termed to be reasonable basis at all for starting the criminal investigation………”

36. Reference was also made to another decision of the Apex Court in the case of Common Cause (a registered society) v. Union of India (1999) 6 SCC 667 : (AIR 1999 SC 2979). The direction issued by the Apex Court in the earlier case to CBI to investigate “any other offence” was, on the review application, found to be wholly erroneous and unsustainable. It was held that obviously direction for investigation can be given only if an offence, prima facie, found to have been committed or a person's involvement is, prima facie, established. But direction to C.B.I to investigate whether any person has committed an offence or not, cannot be legally given. Such a direction, it was further observed, would be contrary to the concept and philosophy of life and Liberty guaranteed to a person under Art. 21 of the Constitution.

37. A reference to another decision of the Apex Court in the case of All India Institute of Medical Sciences Employees' Union (Registered through its President v. Union of India (1996) 11 SCC 582 was made. In that case, the Supreme Court ruled that without availing of the procedures provided by the Code of Criminal Procedure, the petitioner is not entitled to approach the High Court by filing a writ petition under Art. 226 and seeking a direction to conduct an investigation by C.B.I, which is not required to investigate into all or every office. The above observations came to be made in the wake of entirely different set of facts. As said above, we are not inclined to issue a direction for investigation of a case by CBI or any other agency on the strength of the various shortcomings and the financial irregularities as reflected in the report of the C.A.G The petitioner, therefore, is not entitled to the two specific reliefs claimed by him.

38. Quite a few submissions came to be made on behalf of the respondents to challenge the maintainability of the present petition at the instance of the petitioner-Kumar Pal Singh Rathi Sri Dwivedi pointed out that the petitioner has not come forward before this. Court to vindicate any public interest but to aggrandize himself by undue publicity and prominence. The questions raised before us pertain to locus standi in the context of public interest litigation (for short ‘PIL’). Lexically, the expression PIL means a legal action initiated in a court of law for the enforcement of public interest or general interest in which public or a class of the community has pecuniary interest or some interest by which their legal rights or liabilities are affected (Janta Dal v. H.S Chaudhary (1992) 4 SCC 305 : AIR 1993 SC 892 : (1993 Cri LJ 600). The PIL is not adversarial in nature but is one of co-operation and co-ordination between the petitioner and the State. The State or public authority and the Court act in cohesion and collaboration with one and another in achieving the constitutional goal and to accentuate the public good (Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 : AIR 1984 SC 802 : (1984 Lab IC 560).

39. The concept of locus standi came to be considered in the case of S.P Gupta v. Union of India, 1981 Supp SCC 87 : AIR 1982 SC 149. In paragraph 23 of the said decision, the Apex court sounded a note of caution as follows (at page 195):

“23. But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. Andre Rabie has warned that ‘political pressure groups who could not achieve their aims through the administrative process’ and we might add, through the political process, ‘may try to use the Courts to further their aims’. These are some of the dangers in public interest litigation which the Court has to be careful to avoid.”

40. The question of locus standi implies that the petitioner should be pro bono publico acting bona fide and not for self aggrandizement. In course of time, Supreme Court has widely enlarged the scope of PIL by relaxing and liberalising the rule of standing by treating letters of petitions sent by any person or association complaining violation of any fundamental rights and also entertaining writ petitions filed by public spirited and policy-oriented activist persons or journalists or of any organisation rejecting serious challenges made with regard to the maintainability of such petitions and rendered many vlrtuosic pronouncements and issued manifold directions to the Central and the State Governments, all local and other authorities, within the territory of India or under the control of the Government of India for the betterment of the public at large in many fields in conformity with constitutional prescriptions of what constitutes the good life in a socially just democracy.

41. A Constitution Bench of the Apex Court in Jasbhai Moti Bhai Desai v. Roshan Kumar Haji Bashir Ahmad, (1976) 1 SCC 671 : AIR 1976 SC 578 adopted a very cautious approach by observing that those persons who are merely busy body or middlesome interloper masquerade as crusaders for justice, they pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the judicial process from improper motives. The Court in such cases should do well to reject the application of all such busy bodies at the threshold. In Sachidanand Pandey v. State of West Bengal (1987) 2 SCC 295 : AIR 1987 SC 1109, the Apex court took the view that the Court should not take cognizance in such matters merely because of its attractive nature. The petitioner must inspire confidence of the Court and must be above suspicion. Similarly, in Dr. B.K Subbarao v. K. Parasaran 1996 (7) JT 265 : ((1996) 5 SCC 530 : AIR 1996 SC 2687) the Supreme Court observed that no litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. Now it is well settled law that when a person approaches a Court of equity in exercise of its extra-ordinary jurisdiction under Art. 226 of the Constitution of India, he should approach the Court not only with clean hands but with clean mind, clean heart and with clean objectives Ramjas Foundation v. Union of India, 1993 Supp (2) SCC 20 : AIR 1993 SC 852.

42. The concept of locus standi as was chained in certain strait jacket formulate in earlier cases has come to be relaxed and new vistas and channels to Indicate the grievance have been opened up. There are spate of decisions in which Journalists, advocates, bureaucrats and the tax payers have been permitted to bring to the notice of the Court the acts of omission and commission or misfeasance or non-feasance on the part of the State or other public authorities for suitable directions. N. Parthasharthy v. Controller of Capital 1991 (2) JT 218 : ((1991) 3 SCC 153 : AIR 1991 SC 1420) (PIL by lawyers challenging the commercial transactions of public institutions); Harpal Singh Chauhan v. State of U.P 1993 (4) JT (SC) 1 (Judicial review of appointment of Government counsel at the Instance of Advocates); Dr. J.C Almedla v. State of Goa AIR 1988 Bombay 191 (PIL by a retired member of IAS with regard to power-purchase agreements); J. Jaylalita v. Govt. of Tamil Nadu (1999) 1 SCC 53 : (AIR 1999 SC 2330) (PIL on behalf of tax payer to prevent misuse or abuse or improper use of any public property stadium-by anyone); West Bengal Board of Secondary Education v. Smt. Basana Rani Ghosh AIR 1982 Cal 467 (Guardians of students challenged the revision of the syllabus for History prescribed for VIII class); Ram Das Sriniwas Naik v. Union of India, AIR 1995 Bombay 325 (Enron's case); Common cause a registered society v. Union of India (1996) 6 SCC 530 : (AIR 1996 SC 353) and Second Common Cause case v. Union of India 1999 (5) JT (SC) 237 : ((1999) 6 SCC 667 : AIR 1999 SC 2979) (in which the concept of public accountability, transparency and exercise of jurisdiction in just, fair and non-arbitrary manner by a registered society came to be canvassed) are such cases in which the general interest of the society has received predominance, unmindful of the concerned of the petitioner. In a recent decision of the Apex Court in R. Rathinam v. State District Crime Branch Madurai 2000 (2) JT (SC) 604 : ((2000) 2 SCC 391 : AIR 2000 SC 1851) 75 Advocates practising in various Courts situate in Tamil Nadu were permitted to move petitions for cancellation of the bail granted to certain persons. In the gory episode, which took place in June 1997 in a village of Madurai district, six persons belonging to scheduled caste community were done to death. The Police arrested 34 persons in connection with the said massacre. In the months of March and April, 1998, Madras High Court enlarged many of them, totalling to 30, on bail. A brother of one of the deceased along with others made a representation to the Chief Minister of Tamil Nadu. The Government did not favourably respond to it. It was in such a situation that R. Rathinam appellant before the Apex Court and his 74 colleagues at the Bar filed petitions before the Chief Justice High Court for cancellation of bail. The matter was referred to the Division Bench by the Chief Justice of the High Court. The Division Bench closed the suo motu proceedings by observing that “if such representations are entertained then there would be no end and the High Court will be flooded with such petitions and the genuine petitioners and reliefs therein will be delayed and further judicial system itself will fail.” The matter was carried to the Apex Court which allowing the appeal, observed that if so any member of the public, whether he belongs to any particular profession or otherwise, who has a concern in the High Court to remind it of the need to invoke the said power suo motu. It was further observed that “the Division Bench has gone wrong in holding that the petition submitted by the concerned advocates was not maintainable at all. Refusing to exercise the suo motu powers contemplated in S. 439(2) cannot be on such a fallacious premise. The Division Bench ought to have considered the petitions on merits.” Locus standi of the advocates to move the Court in a matter concerning the public interest was recognised.

43. It would appear the Judiciary suo motu adopted the non-formalism by not being much inquisitive as regards the locus of the complainant in respect of grievances for the public cause. Failure of executive in its legal duties or statutory discharge is being looked into in a litigation.

44. In the backdrop of expanded frontiers of the expression Locus Standi and the fact that the gereralists, advocates and elites and judicial activists have been prompted to raise common cause in public interest, we feel that the petitioner, who is a media person, has no axe to grind in the matter. Importance of media in a democracy cannot be overmphasized. Increasing corruption has led to investigative journalism which is of value to a free society. There is nothing on record to indicate that the antecedents of the petitioner are such as would debar him from being called a public spirited person. Certainly he cannot be said to be an intermeddler, interloper or a man of straw. The concern of the petitioner is simply to bring into limelight the misuse the public money by a subdued bureaucracy. Since the Court is capable of taking action suo motu, the question of locus standi of the petitioner pales into insignificance.

45. Conscious of the limitations, as pointed out by Sri Dwivedi and having cleared the decks that this Court would not intervene with the exclusive domain of the legislature to consider the report of the C.A.G and an appropriation bill to recoup the money withdrawn from the Contingency Fund has been passed, and that as it is, the report of C.A.G does not prima facie, disclose commission of any offence, of misappropriation, embezzlement or defalcation of funds economic now proceed to deal with the case from yet another angle i.e, whether this Court can suo motu issue certain directions for enquiring and ascertaining the element of ‘misfeasance in public office’ on the part of the political executive and/or the civil servants. There is scathing criticism in the report about the manner in which the public funds were misutilised and discretionary power of the Chief Minister misused. For a project of the enormous quantities of work and complexities of the design/structure, an impossible target of four months was fixed. The existing policy was seriously flawed both in the effectiveness in achieving the Government's objective and in their adverse effects on local authorities. A bare reading of the report of the C.A.G makes it clear that there have been serious financial irregularities, inasmuch as it raises questions, whether the project was properly estimated; whether the alternative course of action were considered; whether the project was effectively implemented; whether too much discretion was left to the executors of the project; whether bureaucrats signally failed to bring under effective control the uncalled for and wasteful expenditure. The report, summary of which has been given above, also covers wasteful and exaggerated expenditures as well as imprudent contractual transactions. Without commenting upon the policy decision and the motive profferred to bring into existence the Ambedkar project, we find that serious objections with regard to the manner in which project was sought to be executed, money was spent, without following the procedures and without having regard to the financial discipline, have come to be raised. Substantial public money has gone down the drains and there have been fruitless and wasteful expenditures obviously to feed fat the whims and fall in line with the wishes of an ambitious executive head of the State. In view of what has been stated in the report of the C.A.G, there can be no escape from the fact that there has been wasteful expenditure in a project which was sought to be executed in an unprecedented haste. The rules and procedures governing the financial business of the State have been thrown to the winds on account of the emotional attachment of the then Chief Minister with the project and unflinching surrender by the high echelons of the bureaucracy. No one appears to have raised any objection to the unbridled moves of the Chief Minister. The whole objection is about the reckless expenditure of the public money.

46. In a Parliamentary democracy, the head of the State (President or Governor, in our country, as the case may be) calls upon the leader of the political party that commands majority to form Government and appoints him as Prime/Chief Minister; and on latter's advice, appoints other Ministers. Business of the Government gets allocated and is run as per business Rules framed which in our Constitution has been dealt with by Article 166(3) of the Constitution. The executive power of the Government is distributed departmentwise and one Minister is made the head of that department. That Minister becomes responsible for the actions, acts and policies of his department. He becomes principally accountable and answerable to the people. His powers and duties are regulated by the law of the land. The legal and moral responsibility or liability for the acts or omissions rests solely on the Minister. A Chief Minister, in the context of the Constitutional provisions, cannot act as an autocrat. He is not free to spend public money in any manner he likes. He is not supposed to distribute largess. No Chief Minister, or for that matter, any Minister or a civil servant can treat the public funds as his personal property. His position, at best, is that of a trustee of the public money. The public money is required to be spent in accordance with law and the procedures prescribed without violating the financial discipline and set norms. As a matter of fact, there is much to be said about the manner in which the expenditure was incurred in hot haste. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. But, here in this case, the State, with all its executive fiat, had committed wasteful and unwarranted expenditures in the project. It is amazing to note that the high echelons in the bureaucracy bowed before the political executive without any demur or objection. Intertia is the common rule wherever the alleged offender is a powerful person.

47. Civil servants, i.e, bureaucracy should unreservedly accept the fact that those belonging to the political executive are the people who have received the mandate to rule. The political executive has also to be conscious of certain basic principles which should govern their dealings with the civil servants if healthy relations are to be maintained between the two. The first is that, no bureaucrat is expected to carry out the illegal orders of the Minister which expression includes Chief Minister merely because he is Minister. A bureaucrat cannot take cover under the excuse that he implemented illegal order of his Minister because he was bound to accept the authority of the Minister. No bureaucrat is bound to obey an order, which is in violation of a law or regulation. If he is asked to implement an illegal order, it is his duty to point out to the Minister why it cannot be carried out; otherwise, he himself will be guilty of violation of law. In the instant case, it appears that the entire bureaucracy, spineless, as it appeared to be acted as a domestice servant of the Chief Minister or the Minister in charge of the department. It had blindly followed the directions and instructions of the Minister without testing them at the anvil of the rules and regulations. Instead of having the capacity to break out of their mould they have acted as deaf, dumb, silent and passive spectators. They played in the hands of the Minister as puppets. Perhaps they fell in the line of the wishes of the Minister due to the feat of misuse of power of transfer, posting and promotion. Submission to the unlawful directions and instructions of the Chief Minister or the Minister in charge of the department without any demur or objection speaks of the miserable helplessness and haplessness of the bureaucracy. They had not only not risen to the occasion but positively violated the rules and regulations with all impunity, obviously to please their political masters to modify the policies, violate the rules and regulations, or to suit certain vested interest. To justify their illegal acts, the concerned civil servants cannot take shelter of the Cabinet decision or the directions and instructions of the political executive. The report of the C.A.G berates the bureaucracy which ultimately raises a question, whether it was a bloated bureaucracy? The Consultation Paper on ‘Probity in governance’ issued by the National Commission for Review of the Working or the Constitution (NCRWC) has come up with the idea of setting a Civil Service Commission Board for overseeing appointment and transfer of senior posts. The idea is to take away the power of transfer from the political executive which has not only been abused but has also been used in such a manner as to make the bureaucracy including the Indian Administrative Service, plaint, toothless and corrupt.

48. The following excerpts from the speech of Dr. P.C Alexander, Governor of Maharashtra on the occasion of the release of his book, “India in the New Millennium” by the Prime Minister of India recently New Delhi in the context of bureaucracy may usefully be quoted:—

“The lesson of the history of civilizations is that a civilization begins to stagnate when it develops indifference to corruption, it begins to decline when it becomes impervious to corruption, it ends up in irretrievable fall when corruption becomes all pervasive.

In the old days, we associated corruption and other corruption related crimes with the uneducated, the low paid employees in public service or hardened criminals like robbers and dacoits. But today no such dividing line is possible. A criminal commits robbery with a stengun, the educated scamster commits robbery with a fountain pen. While dealing with the role of civil service and defending it against the charge of decline in standards of efficiency, I as a senior citizen of the Service, have expressed my deep anguish and bitter abhorrence at the prevalence of corruption even in the senior echelons of the service.

I have said that if the service is ever declared a failure and is eventually rejected by the people it will not be for want of efficiency or dilution in the selection process but it will be because it has proved to be vulnerable to the cancer or corruption.”

49. General principles of conduct which underpin public life need to be restored.

50. The tone and tenor of the counter-affidavit filed by Sri Yogendra Narain, the then Chief Secretary appears to be that in the face of the orders issued pursuant to the decision taken by the Cabinet the concerned civil servants had no option but to comply with the orders of the Chief Minister and to make available the money for the project as the progress of the time bound project could not be impeded for want of money. There can be no quarrel about the proposition that all the civil servants were bound by the decision taken by the Cabinet. Nevertheless, the action of the civil servants cannot be insulated by the Cabinet decision which nowhere required the officers to flout the well established rules, regulations and the financial procedure. The Cabinet decision cannot be construed to mean that the authorities enjoyed immunity to act in any manner they liked in derogation of the rules and regulations. If a public officer abuses his office either by an act of omission or commission, an action may be maintained against such public officer. Where any well established policy or norm has been flouted, such exercise of power amounts to misuse of power. Public accountability is the necessary component of a public office. In the case of Vineet Narain (supra), the Apex Court has taken note to the report of Lord Nolan in which Seven Principles of Public Life were stated. They are — selflessness, integrity, objectivity, accountability, openness, honesty and leadership. In paragraph 55 of the said decision it was observed by the Apex Court that these principles of public life are a general application in every democracy and every one is expected to bear them in mind while scrutinizing the conduct of holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts of an offence, it must be promptly Investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce rule of law and, therefore, to guard against erosion of the rule of law. Dealing with the philosophy, sociology and etymology, of corruption as well as essence of a Parliamentary democracy, the Apex Court in paragraph 56 further observed that the adverse impact of the lack of probity in public life leading to a high degree of corruption is manifold. The need to highlight corruption in public life through the medium of public interest litigation invoking Judicial review may be frequent in India but is not unknown in other countries. In a different context the Apex Court in the case of Shiv Sagar Tewari v. Union of India (1996) 6 SCC 558 : (AIR 1997 SC 1483) observed that ‘corruption is an abuse of public resources for private gain’. It is known that bribes open the way for access to the state for those who are willing to pay and can afford to pay. The situation leaves non corrupt citizen with the belief that one counts only if one has the right personal contact with those who hold power and also allow persons with money power to get things done to their advantage through back door. A breach of statutory duty does give rise in public law to liability which has come to be known as ‘misfeasance in public office’ and which includes malicious abuse of power. In the said case, it was pleaded that since there was no injury to a third person no action could be taken against public servant who has misused the power. A complete answer to this submission is to be found in paragraph 16 of the decision in Shiv Sagar Tewari's case (supra) as follows:—

“We are conscious that the aforesaid cases dealt with injury to a third party (following misuse of power) who had sought damages for the loss caused, whereas in the present case there is no injury as such to any third person. Even so, the aforesaid cases have been referred for two purposes. Firstly and primarily to bring home the position in law that mususe of power by a public official is actionable in tort. Secondly, to state that in such cases damages awarded are exemplary. The fact that there is no injury to a third person in the present case is not enough to make the aforesaid principles non-applicable inasmuch as there was injury to the high principle in public law that a public functionary had to use its power for bona fide purpose only and in a transparent manner. Insofar as the aspect of loss is concerned, it deserves to be pointed out that there was loss in present case also; and this was to the State Exchequer resultant upon giving of allotments without calling tender as required by the policy. Needless to say that if tender would have been called, higher revenue would have been earned by the State on giving the allotments. For these reasons, we are of the view that the mere fact that in the present case there is no injury to a third person and he has not come forward to claim damages, has no sequitur insofar as the tortuous liability following misfeasance of public office is concerned.”

51. The Apex Court has developed an innovative procedure to generate awareness of the need of probity in pubic life and provided mode of enforcement of accountability in public life. Thus, in view of the various pronouncements of the Apex Court, the conduct of the civil servants who were required to discharge public duty in accordance with law is to be investigated independent of the fate of the report of the C.A.G As a matter of fact, the State Government has taken steps in this regard by appointing Sri T. George Joseph, the then Principal Secretary, Forests who is said to have submitted report in the month of December, 1998. The report was handed over to the Secretary Housing Department but it was shelved. It has, it is stated, branded various high ranking executive officers and members of political executive for their irresponsible behaviour which resulted in causing loss to the extent of several crores of rupees to the State exchequer. The report has not seen the light of the day. The shelving of the report and the absence of action taken thereon is giving rise to misgivings. The Minister-in-charge of the Housing Department, it is alleged, has made a public statement giving a clean chit to all the officers who associated with the project. It has further resulted in utter confusion. There does not appear to be any reason why the report submitted by the Principal Secretary Forests be not made known. If transparency is to be maintained and the allegations of corruption are to be dispelled, it was in the interest of the concerned officers that follow up action on the report of the Principal Secretary Forests is taken.

52. Nexus between the civil servants and the political executives for doing acts, particularly, in executing the projects, resulting in colossal wasteful expenditures has to be unknotted at all costs. Terming corruption ‘anti-poor’ and deploring high ranking political and bureaucratice corruption, the National Commission to Review the Working of the Constitution (for short NCRWC) in its consultation paper on ‘probity in governance’ has given the instance of how ‘hardly 16% of the funds meant for SC and STs reach them and the rest is misappropriated by some of the members of the political and official class and unscrupulous dealers and businessmen. For ensuring probity in governance, the NCRWC has suggested a number of measures. It also suggested a remedy to check misfeasance in office by suggesting a comprehensive law which will provide that ‘where public servants cause loss to the State by their mala fide actions or omissions of a palpable character, be defined and they should be made liable to make good the loss caused by them to the State and an addition, would be open to imposition of exemplary damages.’ High principle in public law that a public functionary has to use its power for bona fide purpose only and in a transparent manner is to be adhered to.

53. From the above discussion, certain unsavoury striking facts emerge which cannot be overlooked by this Court merely on the pretence of exercising the judicial restrain this the duty of the Court to up hold the rule of law and if this duty is not performed, it would negate the very purpose for which the institution of Court has been brought into existence. As said above, we are consious of the fact that the Court should not enter into the exclusive or Supreme domain carved out for the other organs of the State. So far as the legislative functions of the legislature of U.P are concerned, we are keeping our hands off and do not wish to pass any directions in the expectation and sanguine hope that the most potent and important organ, i.e legislature shall discharge its functions and perform the duties with responsibility and urgency. For the same reasons, we also do not wish to put the political executive or the civil servants to any harassment or inconcenience by ordering investigation of the alleged offences, merely because the C.A.G has found that they have been responsible for the loss of a substantial amount of Rs. 34.11 crores in the execution of the project. The report of the C.A.G is to be looked into by the P.A.C and ultimately full-fledged debate is to take place before the legislature. The concerned Minister shall have a right to explain the things. Nevertheless, these political executive and civil servants are accountable for every single penny recovered from the tax payer. They hold the public money in trust and they cannot misuse the same at their volition by throwing the rules and regulations to winds. We have discussed above that the resolution of the council of ministers will not come to the rescue of the civil servants for having taken mindless decisions in aberration of the rules and regulations. Somebody has to take responsibility for execution of the project in an imprudent manner resulting in wasteful expenditure. Whether any offence is, prima facie, made out against the political executive or the civil servants, is the most point which has to be considered by the State Government at the appropriate time. But, certainly, an inhouse enquiry into the matter is required to be made with a view to ascertain as to who were the Civil servants and the members of the political executive who caused loss to the State by their unwarranted actions or omissions. Such persons who may ultimately be identified, maybe proceeded against to make good the losses caused by them and further by imposition of exemplary damages. In Shiv Sagar Tewari's case (supra), the Apex Court has laid down the misfeasance in public office is a specie of tortuous liability. A breach of statutory duty does give rise in public law to liability, which has come to be known as “misfeasance in public office”, and which includes malicious abouse of power. Therefore, misuse of power by public officials is actionable in tort. The public become liable in damages for malicious, deliberate injurious wrong doings. There is no room for secrecy in the affairs of the Government. The transparency in the matter is likely to allay the doubts in the mind of the public or dispel the position that the allegations of “misfeasance in public office” are wrong thereby commanding public confidence. It would, therefore, be in the interest of the Government to made an inquiry, in depth, about the misuse of public funds and indisciplined financial behaviour of all the persons involved in decision making process, if the report of enquiry already submitted by Sri T. George Joseph, the then Principal Secretary, Forests, does not cover all the required aspects.

54. Without dilating the matter any further, we dispose of this writ petition finally with the direction that the Chief Secretary of the State of U.P shall take upon himself the responsibility to retrieve an get hid of the report of Sri T. George Joseph, the then Principal Secretary, Forests submitted in the month of December, 1998 to the Housing Secretary and to take such action on the report as may be warranted in the circumstances. The said report as well as the action taken thereon shall be made public and if necessary may be put on the table of the House within a period of four months.

55. If for some reasons, the report of Sri T. George Joseph is not available, or if after thorough it, it is found that it does not cover all the aspects with regard to the fixing of the responsibility of “misfeasance in public office”, the matter shall be entrusted for enquiry by a committee headed by the Chief Secretary himself with two other Senior Principal Secretaries. The committee, so constituted shall, after conclusion of the enquiry, make the report public and also table the same in the House, within a period of eight months.

56. In the circumstances of the case, no order as to costs is made.

57. Order accordingly.