REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO._____ OF 2010
(Arising out of SLP (Crl.) No.2614 of 2009)
State of Maharashtra & Ors. ..Appellant(s)
Versus
Sarangdharsingh Shivdassingh Chavan & Anr...Respondent(s)
J U D G M E N T
GANGULY, J.
1. Leave granted.
2. The facts of each case, which come up to this Court
and especially those which are heard at length as
appeals, have a message to convey. The message
conveyed in this case is extremely shocking and it
shocks the conscience of this Court about the manner
1
in which the Constitutional functionaries behaved in
the State of Maharashtra.
3. A writ petition was filed before Bombay High Court
by Sarangdharsingh Shivdassingh Chavan - the first
respondent in this appeal. He described himself as
an agriculturist by profession. The allegation in
the writ petition is of illegal money lending
against the second respondent to the extent of
charging 10% interest per month on the money lent.
4. In view of such exorbitant interest being charged
and the illegalities which are alleged be committed
in the recovery of such loan, certain complaints
were filed against the second respondent and in the
writ petition it is stated that as many as 34
complaints were registered against the second
respondent till 28.6.2006.
5. It was also averred in the writ petition that nearly
300 farmers have committed suicide in Vidarbha
region of Maharashtra as victims of such illegal
money lending business and the torture perpetrated
in the recovery of such money. A complaint has been
2
made that the farmers do not get the benefit of
various packages announced by the Government and the
State machinery is ruthless against the farmers. The
cause of action for filing the writ petition is the
order of Collector in the District of Buldhana
(hereinafter "Collector") directing not to register
any crime against Mr. Gokulchand Sananda, the second
respondent herein, without obtaining clearance from
the District Anti Money Lending Committee and also
without obtaining legal opinion of the District
Government Pleader. It appears that the said order
was passed by the Collector in view of the
instructions given to him by the then Chief Minister
of Maharashtra. It has been alleged in the petition
that there are several complaints and the number of
such complaints is about 50 against Sananda and his
family members who are carrying on money lending
business and the cases cannot be registered against
them in view of the instructions given by the then
Chief Minister.
6. In order to understand the seriousness of the
situation, it will be appropriate in the fitness of
things, to set out the order dated 5.6.2006 of the
3
Collector, Buldhana to the District Superintendent
of Police, Buldhana:
"To
District Superintendent of Police
Buldhana
Sub: Regarding complaints against illegal
money lending against MLA Dilipkumar
Sananda and his family members.
Ref: instructions given by Hon'ble Chief
Minister in meeting dated 1.6.2006.
On the above mentioned subject, detailed
discussion took place at the residence of
Hon'ble Chief Minister on 1.6.2006. In the
said meeting, MLA Dilipkumar Sananda
complained that deliberately by raising false
allegations, against his family members,
complaints regarding illegal money lending are
being filed and without scrutinizing
truthfulness of the said complaints, offences
are being registered. In respect of said
grievance, Hon'ble Chief Minister has taken
serious note and given order that `if any such
complaint is received then before registration
of offence against MLA Dilipkumar Sananda and
his family members, said matter/complaint be
placed for decision before District Anti-Money
Lending Committee and said Committee should
obtain legal opinion of District Government
Pleader and then only take decision on the
same and take appropriate legal action
accordingly'.
You are informed that as per the
instructions of Hon'ble Chief Minister,
matters against Sananda family be handled as
per the provisions of Money Lending Prevention
Act."
7. It may be noticed that prior to the aforesaid
discussion which the Collector had at the residence
of the Chief Minister on 1.6.2006 in which meeting
4
Mr. Dilipkumar Sananda, local MLA was present,
something happened in the Police Station, Khamgaon
City, District Buldhana on 31.5.2006. The said
station diary shows that Mr. Padwal, P.S. to the
Chief Minister telephoned twice to enquire about
"the information regarding the offence" registered
against Sananda and the Section under which the case
has been registered. The second phone call as
recorded in Station Diary shows that Mr. Padwal
directed that no action should be taken as
instructed by the Chief Minster and no offence
should be registered. The text of the station diary
dated 31.5.2006 is set out:
"Station Diary
Police Station Khamgaon City, District Buldhana,
dated 31.5.2006
Station Time Summary Particulars of Entry
Diary of the
Entry Entry
No.
26 13.15 Phone At this time, Mr. Padwal, PS
hrs. from PS to Hon'ble Chief Minister,
to Hon. MS dialed and enquired about
CM the information regarding
offence registered against
Sananda; we informed that
offence is registered at
12.15 hrs.
5
27 13.25 Phone At this time, Mr. Padwal
hrs. from PS enquired about facts of the
to Hon. offence registered, sections
CM applied; then we informed
them about sections applied
to the said registered
offence, then he told that
henceforth no action be
taken as instructed by
Hon'ble CM and further said
that again no other offences
be registered.
Sd/-
Police Inspector
Khamgaon City Police Station
8. On the writ petition being filed challenging the
aforesaid two communications, namely, the
communication made by the P.S. to the Chief Minister
vide the Station diary entry which is set out above
and the order of Collector on the direction of the
Chief Minister, the High Court in the impugned
judgment allowed the writ petition. The High Court,
inter alia, held that the directions of the Chief
Minister in the telephonic message was proved by the
communication of the Collector dated 5.6.2006 and
the High Court held that such telephonic
communication was made at the behest of Gokulchand
Sananda, the second respondent herein. The High
Court after examining the provisions of the Bombay
6
Money Lenders Act and also the materials on record
held that the letter dated 5.6.2006 and the
telephonic message recorded in the Station diary
entry exhibit gross abuse of power by the concerned
authority and struck down both the communications.
9. The High Court, however, recorded that on the
complaint filed by the writ petitioner - the first
respondent herein, a chargesheet was filed for
offences under Sections 341, 342, 363, 392, 504 read
with Section 34 of Indian Penal Code and Section 32B
of the Bombay Money Lenders Act, 1946. The criminal
case is pending. The High Court also observed that
they are not aware how many instances of illegal
money lending do exist. The High Court expressed a
hope that power of the Executive will not be abused
in the manner in which it has been done in this
case. The High Court, quashed the Collector's order
and allowed the writ petition awarding costs of
Rs.25,000/- to be paid by the State Government.
10. However, the State of Maharashtra did not accept the
judgment of the High Court and challenged the same
before this Court by filing a special leave petition
out of which the present appeal arises.
7
11. From the affidavit which was filed by the Collector
before the High Court, it appears that the
Collector has admitted that in Vidarbha region in
Buldhana District the farmers committed suicide for
various reasons and especially for the loan burden
coupled with the fact that there was irregular rain
fall.
12. The Collector admitted in paragraph (3) of the
affidavit that on the complaint of Sananda before
the Chief Minister about cases being registered
against him and his family members without
investigation, the Chief Minister called the
Collector at Mumbai and gave the instructions quoted
above and thereupon the Collector conveyed the
message of the Chief Minister to the Superintendent
of Police, Buldhana. However, the Collector took a
stand that by doing so he has not committed any
illegality.
13. In the affidavit of the Superintendent of Police,
Buldhana before the High Court, he admits that there
are five cases already registered against the family
8
members of Sananda under the Bombay Money Lenders
Act and he has given details of those cases in his
affidavit. He also submitted that on 31.5.2006 an
offence came to be registered at police station,
Khamgaon (T) on the complaint made by Shri Rajesh
Shankar Kawadkar under Sections 341, 366, 392 read
with Section 34 IPC and under Section 32(b) and 33
of the Bombay Money Lenders Act. He also admits to
have received instructions from the Collector by the
Collector's order dated 5.6.2006 about the
Collector's meeting with the then Chief Minister of
the Maharashtra and also about the manner in which
the police has to deal with the complaints against
Dilip Kumar Sananda and his family members. He
further averred in his affidavit that by letter
dated 9.6.2006 the Superintendent of Police conveyed
that as per Section 154 of Criminal Procedure Code
cognizable complaints are to be registered without
undue delay. However, on receipt of the said letter
the Collector sent his letter dated 14.6.2006
stating therein that under Section 36 of the Cr.P.C.
the State Government can direct a senior police
officer to take cognizance of the offence also.
9
14. In the course of hearing of this case, this Court by
an order dated 11th February 2010 directed the
learned counsel for the appellant to file an
affidavit on the following points:
"1. The number of cases involving
complaints against respondent No.2 and/or
his family members.
2. The number of cases in which FIR have
been registered against respondent No.2
and/or his family members.
3. The number of cases in which
instructions like the one contained
in letter dated 05.06.2006 of District
Collector, Buldhana were or have been
given by Hon'ble the Chief Minister or
any other functionary or authority of the
State Government."
15. Pursuant thereto an additional affidavit was filed
by one Ambadas, Assistant Police Inspector, posted
to P.S. Khamgaon Gramin, District Buldhana,
Maharashtra to the effect that 34 complaints were
received in different police stations in Buldhana
District against the members of Sananda family. In
the affidavit it was also stated that in seven
complaints chargesheets have been filed and the same
are pending before different Courts below. In
respect of other complaints the complainants have
10
either settled their disputes or have withdrawn
their complaints. It was also stated that not a
single person including any member of the
complainant's family has committed suicide in view
of dispute over money lending by Sananda family.
This averment was, however, not necessary in terms
of the order dated 11.2.10.
16. The learned counsel appearing for the first
respondent raised a contention that the so called
District Anti-money Lending Committee is not
statutory. This Court has looked into the resolution
dated 19th October 2005 which purports to constitute
the said committee and this Court finds that the
said committee has not been constituted in exercise
of any statutory power and the said committee
consists of the following persons:
"1. District Collector of the concerned
District - President
2. District Superintendent of Police -
Member
3. District Registrar, Cooperative
Society - Member Secretary."
17. This Court, therefore, finds that the contention of
the learned counsel for the first respondent is
11
correct and so far as the said committee is
concerned it is not a statutory body.
18. Since, the learned counsel for the first respondent
was arguing on the propriety of directions given by
the then Chief Minister of Maharashtra and also on
the propriety of Chief Minister's Personal Secretary
making telephone calls to the police station and
giving instructions as to how complaints should be
registered against the family of the second
respondent, this Court thought that the then Chief
Minister of Maharashtra, who was initially not a
party to this proceeding, should be impleaded and be
given a chance to make his representation before the
Court. Therefore, this Court by an order dated 31st
March 2010, gave notice to the then Chief Minister
of State of Maharashtra, presently Union Minister,
Department of Heavy Industries, Government of India
and directed service of the entire paper book of
Special Leave Petition on him in order to enable him
to file an affidavit in the context of the letter
dated 5th June 2006 sent by the Collector to the
District Superintendent of the Police, Buldhana.
12
19. Pursuant to the said notice an affidavit was filed
by Shri Vilasrao Deshmukh, the then Chief Minister
of Maharashtra. In paragraph 5 of the said affidavit
the content of the letter of the Collector dated
5.6.06 was not denied. Nor was it denied that on
31.5.06, his Private Secretary made two telephone
calls to the concerned Police Station enquiring
about cases registered against Sananda. However, in
the said affidavit Mr. Deshmukh stated that he never
interfered with any pending investigation against
the family of Sananda and he further stated that
investigation was conducted and the chargesheet was
filed.
20. Considering the entire matter in its proper
perspective, this Court is of the view that the way
interference was caused first from the office of the
Chief Minister by his Private Secretary by two
telephone calls on 31.5.2006 and the manner in which
District Collector was summoned by the Chief
Minister on the very next day i.e. 1.6.2006 for
giving instructions to specially treat any
complaints filed against M.L.A. Mr. Dilip Kumar
13
Sananda and his family has no precedent either in
law or in public administration.
21. The legal position is well settled that on
information being lodged with the police and if the
said information discloses the commission of a
cognizable offence, the police shall record the same
in accordance with the provisions contained under
Section 154 of the Criminal Procedure Code. Police
Officer's power to investigate in case of a
cognizable offence without order of the Magistrate
is statutorily recognised under Section 156 of Code.
Thus the police officer in charge of a police
station, on the basis of information received or
otherwise, can start investigation if he has reasons
to suspect the commission of any cognizable offence.
22. This is subject to the provisos (a) and (b) to
Section 157 of the Code which leaves discretion with
the police officer-in-charge of police station to
consider if the information is not of a serious
nature, he may depute a subordinate officer to
investigate and if it appears to the officer-in-
14
charge that there does not exist sufficient ground,
he shall not investigate.
23. This legal framework is a very vital component of
the Rule of Law in order to ensure prompt
investigation in cognizable cases and to maintain
law and order.
24. Law does not accord any special treatment to any
person in respect of any complaint having been filed
against him when it discloses the commission of any
cognizable offence. In the context of this clear
legal position which, as noted above, is a vital
component of a Rule of Law, the direction of the
then Chief Minister to give a special treatment to
Shri Dilip Kumar Sananda, M.L.A and his family about
registering of complaint filed against them is
totally unwarranted in law. Mr. Vilasrao Deshmukh as
the Chief Minister of State of Maharashtra is
expected to know that the farmers of the State
specially those in the Vidarbha region are going
through a great deal of suffering and hardship in
the hands of money lenders.
15
25. It is not in dispute that members of the family of
Shri Dilip Kumar Sananda, a Member of Legislative
Assembly, are engaged in money lending business and
various complaints have been lodged against the
members of such family.
26. From the affidavit filed by Shri Ambadas it is clear
that 34 cases were filed against that family in
respect of allegation of money lending.
27. From the communication of the Collector containing
the instructions of the then Chief Minister, Mr.
Vilasrao Deshmukh, it is clear that the Chief
Minister was aware of various complaints being filed
against the said family. Even then he passed an
order for a special treatment in favour of the said
family which is unknown to law. This was obviously
done to protect the Sananda family from the normal
legal process and a special procedure was directed
to be adopted in respect of criminal complaint filed
against them. In other words, the Chief Minister
wanted to give the members of the said family a
special protection which is not available to other
similarly placed persons. It is clear from the
16
Collector's order dated 5.6.2006 where the Chief
Minister's instructions were quoted that the Chief
Minister was acting solely on political
consideration to screen the family of M.L.A from the
normal process of law.
28. As Judges of this Court, it is our paramount duty to
maintain the Rule of Law and the Constitutional
norms of equal protection.
29. We cannot shut our eyes to the stark realities. From
the National Crime Records Bureau (NCRB), it is
clear that close to two lakh farmers committed
suicide in India between 1997 and 2008. This is the
largest sustained wave of suicides ever recorded in
human history. Two thirds of the two lakh suicides
took place in five states and those five states are
Maharashtra, Andhra Pradesh, Karnataka, Madhya
Pradesh and Chhattisgarh. Even though Maharashtra is
one of the richest state in the country and in its
capital Mumbai twenty five thousand of India's one
lakh dollar millionaires reside, the Vidarbha region
of Maharashtra, in which is situated Buldhana, is
today the worst place in the whole country for
17
farmers. Professor K. Nagraj of the Madras Institute
of Development Studies who carried on a research in
this area has categorized that Maharashtra could be
called the graveyard of farmers.
30. The position is so pathetic in Vidarbha region that
families are holding funerals and weddings at the
same time and some time on the same day. In a moving
show of solidarity poor villagers are accumulating
their money and labour to conduct marriages and
funerals of their poor neighbours. (See the report
in Hindu dated 22nd May 2006).
31. This being the ground reality, as the Chief Minister
of the State and as holding a position of great
responsibility as a high constitutional functionary,
Mr. Vilasrao Deshmukh certainly acted beyond all
legal norms by giving the impugned directions to the
Collector to protect members of a particular family
who are dealing in money lending business from the
normal process of law. This amounts to bestowing
special favour to some chosen few at the cost of the
vast number of poor people who as farmers have taken
loans and who have come to the authorities of law
18
and order to register their complaints against
torture and atrocities by the money lenders. The
instructions of the Chief Minister will certainly
impede their access to legal redress and bring about
a failure of the due process.
32. The aforesaid action of the Chief Minister is
completely contrary to and inconsistent with the
constitutional promise of equality and also the
preambular resolve of social and economic justice.
As a Chief Minister of the State Mr. Deshmukh has
taken a solemn of oath of allegiance to the
Constitution but the directions which he gave are
wholly unconstitutional and seek to subvert the
constitutional norms of equality and social justice.
33. The argument that some of the cases in which
complaints were filed against the family of Sananda,
were investigated and chargesheets were filed, is a
poor consolation and does not justify the issuing of
the wholly unauthorised and unconstitutional
instructions to the Collector. It is not known to us
in how many cases investigation has been totally
scuttled in view of the impugned directions. Records
disclosed in this case show that out of 74 cases
19
only in seven cases chargesheets were filed and the
rest of the cases were either compromised or
withdrawn. How can poor farmers sustain their
complaint in the face of such directions and how can
the subordinate police officers carry on
investigation ignoring such instructions of the
Chief Minister? Therefore, the instructions of the
Chief Minister have completely subverted the Rule of
Law.
34. Dr. Singhvi, learned senior counsel appearing for
Mr. Vilasrao Deshmukh relied on a decision of this
Court in the case of Lalita Kumari v. Government of
Uttar Pradesh & Ors. reported in 2008 (14) SCC 337.
35. In Lalita Kumari (supra), a Bench of this Court did
not lay down any law. The Bench merely noted that
there is a divergence of views between different
Benches of this court on the issue whether upon
receipt of information disclosing a cognizable
offence, it is imperative for the police officer to
register a case or discretion still lies with him to
make some kind of a preliminary enquiry before
registering the same. The Bench having noted the
20
divergence of views on the aforesaid question
referred the matter to a larger Bench.
36. We fail to appreciate the relevance of the aforesaid
decision to the disputes involved in the present
case.
37. In Lalita Kumari (supra), there was no instruction
by any Chief Minister or any executive authority to
give a special treatment to any group of persons in
the matter of registration of criminal cases against
them. Therefore, the opinion in Lalita Kumari
(supra) does not in any way justify the instruction
given by Mr. Vilasrao Deshmukh.
38. This Court is extremely anguished to see that such
an instruction could come from the Chief Minister of
a State which is governed under a Constitution which
resolves to constitute India into a socialist,
secular, democratic republic. Chief Minister's
instructions are so incongruous and anachronistic,
being in defiance of all logic and reason, that our
conscience is deeply disturbed. We condemn the same
in no uncertain terms.
21
39. We affirm the order of the High Court and direct
that the instruction of the Chief Minister to the
Collector dated 5.6.06 has no warrant in law and is
unconstitutional and is quashed. We dismiss this
appeal with costs of Rs.10,00,000/- (Rupees Ten
Lakhs) to be paid by the appellant in favour of the
Maharashtra State Legal Services Authority. This
fund shall be earmarked by the Authority to help the
cases of poor farmers. Such costs should be paid
within a period of six weeks from date.
.....................J.
(G.S. SINGHVI)
.....................J.
(ASOK KUMAR GANGULY)
New Delhi
December 14, 2010
22
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2010
(Arising out of SLP (Crl.) No. 2614 of 2009)
State of Maharashtra and others ........Appellants
Versus
Sarabgdharsingh Shivdassing Chavan .......Respondents
and another
JUDGMENT
G.S. Singhvi, J.
1. I have gone through the judgment prepared by my esteemed brother
Justice Asok Kumar Ganguly. I agree with him that the appeal deserves to
be dismissed with costs but would like to separately record my views on the
crucial issue of ministerial interference in the functioning of the authorities
entrusted with the task of enforcing the laws enacted by the legislature.
24
2. The Constituent Assembly which comprised of eminent people drawn
from different walks of life debated for more than two years, examined the
constitutions of several countries and prepared the document, which was
adopted as "the Constitution of India". The Preamble to the Constitution, as
it stands after the Constitution (Forty-second Amendment) Act, 1976, reads
thus:
"We, the people of India, having solemnly resolved to
constitute India into a Sovereign Socialist Secular Democratic
Republic and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression belief, faith and worship;
EQUALITY of status and of opportunity and to promote among
them all
FRATERNITY assuring the dignity of the individual and the
unity and integrity of the Nation."
3. Though each of XXII Parts of the Constitution has its own
significance, the common man is by and large concerned with Parts III, IV
and IV-A, the last having been added by the Forty-second Amendment Act,
1976. Part-III of the Constitution enumerates various fundamental rights
guaranteed to the citizens and even non-citizens. The provisions of Part-IV
contain directive principles of State policy which are fundamental for the
25
governance of the country. The State has been obligated to enact laws for
improving the lot of the weaker sections of the society and the rural
population so that the goals of social justice and equality can be achieved.
4. By incorporating Part IVA in the Constitution, the Parliament has
emphasized what is obvious, that is, every citizen must do his duty towards
the nation as well as the fellow citizens because unless every one does his
duty, it is not possible to achieve the goals of equality and justice enshrined
in the Preamble. Article 51A enjoins upon every citizen to abide by the
Constitution and respect its ideals and institutions, the National Flag and the
National Anthem; to cherish and follow the noble ideals which inspired our
national struggle for freedom; to uphold and protect the sovereignty, unity
and integrity of India; to promote harmony and the spirit of common
brotherhood amongst all the people irrespective of religion, language, region
etc. and to renounce practices derogatory to the dignity of women; to value
and preserve the rich heritage of our composite culture; to protect and
improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures; to develop the scientific
temper, humanism and the spirit of inquiry and reform; to safeguard public
property and to abjure violence; and to strive towards excellence in all
26
spheres of individual and collective activity so that the nation constantly
rises to higher levels of endeavour and achievement. What has been
incorporated in the form of Part IV-A was implicit in the Preamble, Part III
and Part-IV of the Constitution because fundamental rights of the citizens
can become meaningful only if the State and citizens do their duty to bring
about real equality amongst the people belonging to different segments of
the Society.
5. Part IV-A of the Constitution was enacted with a fond hope that every
citizen will honestly play his role in building of a homogeneous society in
which every Indian will be able to live with dignity without having to bother
about the basics like food, clothing, shelter, education, medical aid and the
nation will constantly march forward and will take its place of pride in the
comity of nations. However, what has happened in last few decades has
given rise to serious apprehensions whether we will be able to achieve the
objectives which were in the mind of the makers of the Constitution. The
gap between 'haves' and 'haves not' of the society which existed even in pre-
independent India has widened to such an extent that it may take many
decades before even a token equality is restored. A small fraction of the
population has evolved a new value system which is totally incompatible
27
with the values and ideals cherished by the Indian society for centuries
together. They believe in achieving their goals without regard to purity of
the means.
6. Under the Constitution, the executive power of the State vests in the
Governor and is required to be exercised by him either directly or through
officers subordinate to him in accordance with the Constitution [Article
154(1)]. Article 163 mandates that there shall be Council of Ministers with
the Chief Minister as the head to aid and advise the Governor in the exercise
of his functions, except in so far as he is by or under the Constitution
required to exercise his functions or any of them in his discretion. Article
164 lays down that the Chief Minister shall be appointed by the Governor
and the other Ministers shall be appointed by the Governor on the advice of
the Chief Minister, and the Minister shall hold office during the pleasure of
the Governor. Article 164(3) lays down that the Governor shall before a
Minister enters upon his office, administer to him the oath of office and
secrecy according to the form set out in the Third Schedule, in terms of
which, the Minister is required to take oath that he shall discharge his duties
in accordance with the Constitution and the law without fear or favour,
affection or ill will. However, the cases involving pervasive misuse of
public office for private gains, which have come to light in last few decades
28
tend to shake the peoples' confidence and one is constrained to think that
India has freed itself from British colonialism only to come in the grip of a
new class, which tries to rule on the same colonial principles. Some
members of the political class who are entrusted with greater responsibilities
and who take oath to do their duties in accordance with the Constitution and
the law without fear or favour, affection or ill will, have by their acts and
omissions demonstrated that they have no respect for system based on rule
of law.
7. The judgment of the Constitution Bench in C.S. Rowjee v. State of
Andhra Pradesh (1964) 6 SCR 330 is an illustration of the misuse of public
office by the Chief Minister for political gain. The schemes framed by the
Government of Andhra Pradesh under Chapter IVA of the Motor Vehicles
Act, 1939 for nationalization of motor transport in certain areas of Kurnool
District of Andhra Pradesh were challenged by filing writ petitions under
Article 226 of the Constitution. The High Court repelled the challenge to
the validity of the schemes and also negatived the argument that the same
were vitiated due to mala fides of the then Chief Minister of the State. This
Court allowed the appeals and quashed the scheme and declared that the
schemes are invalid and cannot be enforced. While examining the issue of
mala fide exercise of power, the Constitution Bench stuck a note of caution
29
by observing that allegations of malafides and of improper motives on the
part of those in power are frequently made and some times without any
foundation and, therefore, it is the duty of the Court to scrutinize those
allegations with care so as to avoid being in any manner influenced by them
if they are not well founded. The Court then noted that the scheme was
originally framed by the Corporation on the recommendations of
Anantharamakrishnan Committee, but was modified at the asking of the
Chief Minister so that his opponents may be prejudicially affected and
proceeded to observe:
"The first matter which stands out prominently in this
connection is the element of time and the sequence of dates. We
have already pointed out that the Corporation had as late as
March 1962 considered the entire subject and had accepted the
recommendation of the Anantharamakrishnan Committee as to
the order in which the transport in the several districts should be
nationalised and had set these out in their Administration
Report for the three year period 1958 to 1961. It must,
therefore, be taken that every factor which the
Anantharamakrishnan Committee had considered relevant and
material for determining the order of the districts had been
independently investigated, examined and concurred in, before
those recommendations were approved. It means that up to
March-April 1962 a consideration of all the relevant factors had
led the Corporation to a conclusion identical with that of the
Anantharamakrishnan Committee. The next thing that happened
was a conference of the Corporation and its officials with the
Chief Minister on April 19, 1962. The proceedings of the
conference are not on the record nor is there any evidence as to
whether any record was made of what happened at the
conference. But we have the statement of the Chief Minister
30
made on the floor of the State Assembly in which he gave an
account of what transpired between him and the Corporation
and its officials. We have already extracted the relevant
portions of that speech from which the following points
emerge: (1) that the Chief Minister claimed a right to lay down
rules of policy for the guidance of the Corporation and in fact,
the learned Advocate-General submitted to us that under the
Road Transport Corporation Act, 1950, the Government had a
right to give directions as to policy to the Corporation; (2) that
the policy direction that he gave related to and included the
order in which the districts should be taken up for
nationalisation; and (3) that applying the criteria that the
districts to be nationalised should be contiguous to those in
which nationalised services already existed, Kurnool answered
this test better than Chittoor and he applying the tests he laid
down therefore suggested that instead of Chittoor, Kurnool
should be taken up next. One matter that emerges from this is
that it was as a result of policy decision taken by the Chief
Minister and the direction given to the Corporation that
Kurnool was taken up for nationalisation next after Guntur. It is
also to be noticed that if the direction by the Chief Minister,
was a policy decision, the Corporation was under the law bound
to give effect to (vide Section 34 of the Road Transport
Corporation Act, 1950). We are not here concerned with the
question whether a policy decision contemplated by Section 34
of the Road Transport Act could relate to a matter which under
Section 68-C of the Act is left to the unfettered discretion and
judgment of the Corporation, where that is the State
undertaking, or again whether or not the policy decision has to
be by a formal Government Order in writing for what is
relevant is whether the materials placed before the Court
establish that the Corporation gave effect to it as a direction
which they were expected to and did obey. If the Chief Minister
was impelled by motives of personal ill-will against the Road
Transport Operators in the western part of Kurnool and he gave
the direction to the Corporation to change the order of the
districts as originally planned by them and instead take up
Kurnool first in order to prejudicially affect his political
opponents, and the Corporation carried out his directions it does
not need much argument to show that the resultant scheme
31
framed by the Corporation would also be vitiated by mala fides
notwithstanding the interposition of the semi-autonomous
Corporation.
...... If in these circumstances the appellants allege that
whatever views the Corporation entertained they were
compelled to or gave effect to the wishes of the Chief Minister,
it could not be said that the same is an unreasonable inference
from facts. It is also somewhat remarkable that within a little
over two weeks from this conference by its resolution of May 4,
1962, the Corporation dropped Nellore altogether, a district
which was contiguous to Guntur and proceeded to take up the
nationalisation of the routes of the western part of the Kurnool
district and were able to find reasons for taking the step. It is
also worthy of note that in the resolution of 4th May, 1962, of
the Corporation only one reason was given for preferring
Kurnool to Nellore, namely, the existence of a depot at Kurnool
because the other reason given, namely, that Kurnool was
contiguous to an area of nationalised transport equally applied
to Nellore and, in fact, this was one of the criteria on the basis
of which the Anantharamakrishnan Committee itself decided
the order of priority among the districts. ......
...... What the Court is concerned with and what is relevant to
the enquiry in the appeals is not whether theoretically or on a
consideration of the arguments for and against, now advanced
the choice of Kurnool as the next district selected for
nationalisation of transport was wise or improper, but a totally
different question whether this choice of Kurnool was made by
the Corporation as required by Section 68-C or, whether this
choice vas in fact and in substance, made by the Chief Minister,
and implemented by him by utilising the machinery of the
Corporation as alleged by the appellants. On the evidence
placed in the case we are satisfied that it was as a result of the
conference of April 19, 1962, and in order to give effect to the
wishes of the Chief Minister expressed there, that the schemes
now impugned were formulated by the Corporation."
(emphasis supplied)
32
In Chandrika Jha v. State of Bihar (1984) 2 SCC 41, this Court
examined the question whether the Chief Minister of the State could direct
extension of the term of the committee of management of Vaishali District
Central Cooperative Bank, Hazipur (for short, `the Bank'). The Bank was
created for the new district, which came into existence with the bifurcation
of the existing district. In exercise of the power conferred upon him by
Bye-law 29, the Registrar, Cooperative Societies, Bihar nominated a
committee of management of 17 members including the appellant to be the
first Board of Directors for a period of six months i.e., up to December 31,
1981 or till further orders, whichever was earlier. The committee of
management was specifically directed to get the elections of the Board of
Directors held in accordance with the law within six months. The appellant,
who was a political person directly approached the then Chief Minister of
the State and got the term of the first Board of Directors extended from time
to time resulting in postponement of the election of the new board. On
29.10.1981, the then Chief Minister made an endorsement to the Minister
(Cooperation) with a direction that the Registrar should extend the period of
the committee of management for the time being. The Registrar complied
with the directive of the Chief Minister, but ordained the committee of
33
management to call the general meeting and get the Board of Directors
elected within the extended term. In April 1982, the appellant again got the
term extended through the intervention of the Chief Minister. On 13.4.1983,
the appellant addressed another communication to the Chief Minister for
extension of the term of the nominated Board of Directors for one year. The
Chief Minister obliged him by extending the term for six months and
endorsed the same to the Minister (Cooperation). The then Chief Minister
resigned on 13.8.1983. Thereafter, the Registrar reconstituted the first
Board of Directors in terms of the direction given by the Minister for
Industries. This Court prefaced consideration of the question of interference
by the Chief Minister with the statutory functions of the Registrar under
Bye-law 29 by making the following observations:
"The case illustrates an unfortunate trend which has become too
common these days in the governance of the country."
The Court then referred to the relevant statutory provisions and observed:
"We fail to appreciate the propriety of the Chief Minister
passing orders for extending the term of the first board of
directors. Under the Cabinet system of Government the Chief
Minister occupies a position of pre-eminence and he virtually
carries on the governance of the State. The Chief Minister may
call for any information which is available to the Minister-in-
charge of any department and may issue necessary directions
34
for carrying on the general administration of the State
Government. Presumably, the Chief Minister dealt with the
question as if it were an executive function of the State
Government and thereby clearly exceeded his powers in
usurping the statutory functions of the Registrar under Bye-Law
29 in extending the term of the first board of directors from
time to time. The executive power of the State vested in the
Governor under Article 154(1) connotes the residual or
governmental functions that remain after the legislative and
judicial functions are taken away. The executive power includes
acts necessary for the carrying on or supervision of the general
administration of the State including both a decision as to
action and the carrying out of the decision. Some of the
functions exercised under "executive powers" may include
powers such as the supervisory jurisdiction of the State
Government under Section 65-A of the Act. The Executive
cannot, however, go against the provisions of the Constitution
or of any law.
Neither the Chief Minister nor the Minister for Co-operation or
Industries had the power to arrogate to himself the statutory
functions of the Registrar under Bye-Law 29. The act of the
then Chief Minister in extending the term of the committee of
management from time to time was not within his power. Such
action was violative of the provisions of the Rules and the bye-
laws framed thereunder. The Act as amended from time to time
was enacted for the purpose of making the co-operative
societies broad-based and democratizing the institution rather
than to allow them to be monopolized by a few persons. The
action of the Chief Minister meant the very negation of the
beneficial measures contemplated by the Act.
In Surendra Kumar v. State of Bihar (1984) 4 SCC 609, this Court
referred to an earlier decision in Suman Gupta v. State of J. & K. AIR
1983 SC 1235, wherein the Court had observed that there is nothing like
35
unfettered discretion of the executive authority to nominate the candidate for
admission to medical course under the reciprocal arrangement and observed
that recommendations made at the instance of the Chief Minister de hors the
merit of the candidates who had applied for admission was blatant abuse of
power by the Chief Minister.
In Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1
SCC 227, the question considered by this Court was whether the marks
awarded to the daughter of the appellant, who was at the relevant time the
Chief Minister of the State of Maharashtra had been changed at his instance
or to please him. The respondent had challenged the result of the appellant's
daughter of MD examination by alleging that his daughter was shown favour
by increasing her marks. The learned Single Judge, after examining the
record produced before him, came to the conclusion that tampering of the
grade-sheets was done by Dr. Rawal at the behest of respondent Nos.3 and
4. The Division Bench of the High Court rejected the prayer for permission
to adduce additional evidence and dismissed the appeal with an observation
that the conclusion arrived at against the appellant should be treated as
merely in the nature of an adverse comment and not a finding of fact. This
Court extensively considered the matter, referred to some of the precedents
and observed:
36
"There is no question in this case of giving any clean chit to the
appellant in the first appeal before us. It leaves a great deal of
suspicion that tampering was done to please Shri Patil or at his
behest. It is true that there is no direct evidence. It is also true
that there is no evidence to link him up with tampering.
Tampering is established. The relationship is established. The
reluctance to face a public enquiry is also apparent. Apparently
Shri Patil, though holding a public office does not believe that
"Caesar's wife must be above suspicion". The erstwhile Chief
Minister in respect of his conduct did not wish or invite an
enquiry to be conducted by a body nominated by the Chief
Justice of the High Court. The facts disclose a sorry state of
affairs. Attempt was made to pass the daughter of the erstwhile
Chief Minister, who had failed thrice before, by tampering the
record. The person who did it was an employee of the
Corporation. It speaks of a sorry state of affairs and though
there is no distinction between comment and a finding and there
is no legal basis for such a comment, we substitute the
observations made by the aforesaid observations as herein.
This Court cannot be oblivious that there has been a steady
decline of public standards or public morals and public morale.
It is necessary to cleanse public life in this country along with
or even before cleaning the physical atmosphere. The pollution
in our values and standards in (sic is) an equally grave menace
as the pollution of the environment. Where such situations cry
out the courts should not and cannot remain mute and dumb."
(emphasis supplied)
In Secretary, J.D.A. v. Daulat Mal Jain (1997) 1 SCC 35, this Court
had the occasion to examine allotment of lands to the respondents by the
Minister and the committee headed by the Minister. Some of the
observations made in that decision are quite relevant in the context of the
present case. Therefore, they are quoted below:
37
"... The Minister holds public office though he gets
constitutional status and performs functions under constitution,
law executive policy. The acts done and duties performed are
public acts or duties as holding of the public office. Therefore,
he owes certain accountability for the acts done or duties
performed. In a democratic society governed by rule of law,
power is conferred on the holder of the public office or the
concerned authority by the Constitution by virtue of
appointment. The holder of the office, therefore, gets
opportunity to abuse or misuse of the office. The politician who
holds public office must perform public duties with the sense of
purpose, and a sense of direction, under rules or sense of
priorities. The purpose must be genuine in a free democratic
society governed by the rule of law to further socio-economic
democracy. ............... If the Minister, in fact, is responsible
for all the detailed working of his Department, then clearly
ministerial responsibility must cover a wider spectrum than
mere moral responsibility; for no minister can possibly get
acquainted with; all the detailed decisions involved in the
working of his Department.... The so-called public policy
cannot be a camouflage for abuse of the power and trust
entrusted with a public authority or public servant for the
performance of public duties. Misuse implies doing of
something improper. The essence of impropriety is replacement
of a public motive for a private one. When satisfaction sought
in the performance of duties is for mutual personal gain, the
misuse is usually termed as corruption. The holder of a public
office is said to have misused his position when in pursuit of a
private satisfaction, as distinguished from public interest, he has
done something which he ought not to have done. The most
elementary qualification demanded of a Minister is honesty and
incorruptibility. He should not only possess these qualifications
but should also appear to possess the same."
(emphasis supplied)
38
In R v. Metropolitan Police Commissioner (1968) 1 All. E.R. 763,
the Court of Appeal considered the question whether the Commissioner of
Police could give instruction to the cadre not to take action against clubs for
violating gaming laws and held that he was not entitled to do so. The facts
of the case show that Albert Raymond Blackburn applied for a mandamus to
the Commissioner of Police of Metropolis requiring him to assist him in the
prosecution of gaming clubs, which contravened the provisions of Betting,
Gaming and Lotteries Act, 1963 and in particular to assist him in respect of
the complaint lodged on March 21, 1967 in relation to Golden Nugget Club,
Piccadilly and to reverse or procure the reversal of a policy decision taken
by him or his superiors that the time of the police officers would not be
spent on enforcing the provisions of the Betting, Gaming and Lotteries Act,
1963. The Divisional Court of Queen's Bench dismissed the application.
The Court of Appeal noted that the policy decision contained in
communication dated April 22, 1966 was a confidential instruction issued to
the senior officers of the metropolitan police whereby they were directed not
to proceed against the clubs for breach of gaming laws unless there was
complaint of cheating or they become haunts of criminals. As a result of the
said instruction, the big gaming clubs in the metropolis were allowed to
39
carry on their activities without any police interference. In his opinion, Lord
Denning M.R. made the following observations:
"I hold it to be the duty of the Commissioner of Police, as it is
of every chief constable, to enforce the law of the land. He
must take steps so to post his men that crimes may be detected;
and that honest citizens may go about their affairs in peace. He
must decide whether or no suspected persons are to be
prosecuted; and, if need be, bring the prosecution or see that it
is brought; but in all these things he is not the servant of
anyone, save of the law itself. No minister of the Crown can
tell him that he must, or must not, keep observation on this
place or that; or that he must, or must not, prosecute this man or
that one. Nor can any police authority tell him so. The
responsibility for law enforcement lies on him. He is
answerable to the law and to the law alone."
(emphasis supplied)
In Magill v. Porter (2002) 2 AC 357, the House of Lords upheld the
decision of the District Auditor who had opined that certain Ministers of
Westministers City Council had used their powers to increase the number of
owners/occupiers in marginal wards for the purpose of encouraging them to
vote for the Conservative Party in future elections. The House of Lords
held that although the powers under which the Council could dispose of the
land was very broad, and although, elected politicians were entitled to act in
a manner which would earn the gratitude and support of their electorate, they
could act only to pursue a "public purpose for which the power was
40
conferred", but the purpose of securing electoral advantage for the
Conservative Party was no such "public purpose".
8. At this stage, I may also refer to the following portion of the preface
to 1964 paper back edition of the book titled "The Modern State" by
Maciver:
"The state has no finality, but human nature is as stable as
human needs, and what human beings need from government -
if we think not of the few, but of men generally, men as social
beings - is the same under all conditions. These are liberties
secured by restraints, justice under law, order that provides
opportunity, the economy of the good life. The modes of
satisfying these needs change with the changing conditions. To
satisfy any need whatever, even the most spiritual, a modicum
of power is necessary, for power is simply the effective control
of means. From the beginning of human history government
has been recognized as the overall holder and regulator of
power, maintaining order by limiting all other expressions of
power and thereby turning permitted powers into rights. In that
concept lay the rudiments of the principles of government. In
every age men have sought to clarify the application of these
principles to the changing times. In every age the abuse of
power by governments has led to disasters and uprisings,
oppressions and vainglorious wars, and sometimes to
experiments in the control of power, seeking to make it
responsible, or more responsible, subject in some manner to the
will of the people, of the majority or those who represented
them."
9. The facts of this case, as noticed in the judgment prepared by brother
Justice Ganguly, show that with a view to frustrate the complaint made by
41
respondent No.1 who alleged that respondent No.2 - Gokulchand Sananda,
his family members and some other money lenders were harassing him and
other farmers and also to stall the action likely to be initiated by the
concerned police authorities under the Bombay Money Lenders Act, 1946.
Shri Dilip Kumar Sananda, a member of the Legislative Assembly
approached the Chief Minister for a special treatment. In the first place, the
Principal Secretary of the Chief Minister made enquiries from the police
station about the cases registered against Sananda. Thereafter, the Chief
Minister, without verifying the truthfulness or otherwise of the assertion of
Shri Dilip Kumar Sananda that false complaints were being lodged against
his family members, issued instructions that complaint against the concerned
M.L.A. and his family members should be first placed before the District
Anti-Money Lending Committee, which should obtain legal opinion of the
District Government Pleader and then only take decision on the same and
take appropriate legal action. The camouflage of sophistry used by Shri
Vilas Rao Deshmukh in the instructions given by him and the affidavit filed
before this Court is clearly misleading. The message to the authorities was
loud and clear i.e. they were not to take the complaints against Sananda
family seriously and not to proceed against them. The District Magistrate,
the District Superintendent of Police and officers subordinate to them were
42
bound to comply with the same in their letter and spirit. They could
disregard those instructions at their own peril and none of them was
expected to do so. The District Anti-Money Lending Committee was
constituted by the Government of Maharashtra vide resolution No.
MLA.1204/CR/280/C/7/S dated 19th October, 2009 for protecting the
farmers against unscrupulous money lenders and not for protecting the
wrong doers, but in total disregard of the scheme of the Act, the Chief
Minister gave instructions which had the effect of frustrating the object of
the legislation enacted for protection of the farmers. The instructions given
by the Chief Minister to District Collector, Buldhana were ex facie ultra
vires the provisions of the Act which do not envisage any role of the Chief
Minister in cases involving violation of the provisions of the Act and
amounted to an unwanted interference with the functioning of the authorities
entrusted with the task of enforcing the Act enacted for regulating,
controlling transactions of money lending and protecting unsuspecting
borrowers against oppression and harassment at the hands of unscrupulous
money lenders.
............................J.
(G.S. Singhvi)
New Delhi,
December 14, 2010
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
